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International Law 








The discussions upon international law were, as in 
recent years, conducted under the auspices of the Naval 
War College authorities by George Grafton Wilson, 
LL. D., professor of international law in Harvard Uni- 
versity, who also drew up the notes which are published 
in the present volume. The discussion aimed to consider 
the situations from the point of view of the belligerent on 
the offensive, the belligerent on the defensive, and the 

Criticisms of the material presented and suggestions 
as to topics and situations that should be discussed will 
be welcomed by the Naval War College. 

J. R. Poinsett Pringle, 

Rear Admiral, United States Navy, 

President Naval War College. 

April 1, 1929. 




Situation I. — Maritime jurisdiction. __* 1 

Solution 2 

Notes 2 

Historical 2 

Eighteenth century treaties 13 

Austrian ordinance, 1803 14 

Kent's opinion 14 

Alabama and Kearsarge 15 

Naval War College discussion, 1913 18 

Waters adjacent to the 3-mile limit 18 

Attitude of United States 19 

Navigation laws of the United States 20 

Interpretation of act of 1895 21 

Russo-Japanese War, 1904 23 

Hague rules on maritime war 23 

Doctor Weinberg's comment 25 

Russia, 1912 26 

Attitude of governments, 1914-1918 27 

The United States and Italy, 1914 29 

Hovering, 1915-16 31 

The Elida 31 

The Bangor 33 

Treaties 33 

Opinion of Supreme Court 34 

Central American Court of Justice, 1917 34 

British attitude, 1923 35 

The Fagernes 35 

High sea and national legislation 37 

Solution 38 

Situation II. — Carriage of mail in time of war 40 

Solution 40 

Notes 41 

(a) Development of postal service 41 

Treatment of postal correspondence before 1907__ 41 

Instructions as to mails 45 

The Panama, 1900 47 

Mails, 1900-1907 48 

The Hague Conference, 1907 49 

XI Hague Convention, 1907 50 



Situation II. — Carriage of mail in time of war — Contd. 

(a) Development of postal service — Continued. page 

En mer 51 

Early period of World War 52 

Later period of World War . 53 

Interference with American mail 54 

Removal of mail , 56 

British-Swedish mails 60 

The Simla, 1915 62 

The Tubantia and others 63 

The Noordam 63 

Resume _« 65 

Treatment of the Gull 65 

Solution 66 

(6) Aircraft 66 

Commission of Jurists, 1923 67 

Doctor Spaight on belligerent and neutral aircraft. 68 

Attempts to escape 69 

Aerial mail___ 70 

General considerations 70 

Solution 72 

Situation III. — Enemy persons on neutral vessels 73 

Solution 73 

Notes 74 

Treaty provisions : 74 

Dana's opinion, 1866 76 

The Sidney, 1894 79 

Institute of International Law resolutions 79 

South African War cases, 1900 80 

Analogues of contraband 82 

Declaration of London 83 

Regulations 86 

French interpretation 88 

French Regulations, 1916 89 

Early World War practice 89 

British notice, 1914 91 

Piepenbrink case, 1914 92 

The China case, 1916 97 

Instructions for the Navy of the United States, 

1917 103 

Case of the Svithiod, 1920 104 

Proposed rules of aerial warfare, 1923. Persons 

on neutral aircraft 105 

Resume 106 

Solution 108 

Index 109 


Situation I 


States X and Y are at war. Other States are neutral. 
An act of Congress of the United States, February 19, 
1895, provided for the delimitation of the high seas from 
rivers, harbors, and inland waters. Lines were later 
drawn on maps published in accordance with this author- 
ization. Some of these lines were 10 miles off the coast. 

(a) (1) The Lark, a vessel of war of X, passes within 
these outer lines and when 8 miles off the coast summons 
merchant vessels of the United States and of other States 
to stop for visit and search. The master of each of these 
vessels appeals for protection to the authorities of the 
United States on the ground that the vessels are within 
the lines drawn under the act of 1895. 

(2) The Thrush, a vessel of war of Y, attacks the Cyg- 
net, a vessel of war of X, on the following day at the same 
location, and the commander of the Cygnet protests on 
the ground that his vessel is in neutral waters. 

(b) The Cygnet by gunfire drives the Thrush 12 miles 
off the coast. The Thrush continues the battle using dan- 
gerous gas. Some of this gas floats within 3 miles of the 
United States and life there is endangered. 

(c) Later the Thrush, still having a large amount of 
dangerous gas on board, is about to enter a harbor of the 
United States. The port authorities decline to permit 
entrance with the gas on board. The commander of the 
Thrush protests, as he is short of fuel to continue his voy- 
age to a home port. 



What action should the authorities of the United States 
take in each case? 


(a) (1) The right of visit and search beyond the 
3 -mile limit upon the high sea is an undeniable belligerent 
right and the authorities of the United States can afford 
no protection against its lawful exercise. 

(2) The protest of the Cygnet is not valid, as these 
waters are not, for the purposes of neutrality, within the 
jurisdiction of the United States. 

(h) The authorities of the United States may use the 
means at their disposal to prevent the diffusion of dan- 
gerous gas within 3 miles of the coast. 

(c) The authorities of the United States may exclude 
from its harbors vessels having dangerous gas on board, 
or may prescribe the conditions of entrance thereto for 
such vessels. 


Historical. — The development of a clearly defined law 
of maritime jurisdiction has been slow. As the desire to 
control a utility or a presumed utility would ordinarily 
underlie the exercise of jurisdiction, the attitude toward 
maritime jurisdiction would vary with the use of the sea. 
It might be possible that there would be no conflict of 
jurisdiction between States when one State used the sea 
merely as a source of food supply while another regarded 
it as an effective barrier against hostile invasion. The 
attitude of States toward jurisdiction, or the exercise of 
State authority over the sea has rested upon different 
bases. Sometimes the main reasons for the exercise of 
authority have been for self-defense, sometimes for eco- 
nomic or other reasons. 

In the account of creation in the first chapter of 
Genesis, God is represented as saying, " Let us make man 
in our image after our likeness ; and let him have domin- 


ion over the fish of the sea." This seems to be a general 
injunction to the effect that fish are to be for man. The 
problem as to the limits of rights in fish when different 
men or groups of men claim the fish still remains un- 
settled. Man has been given dominion on the earth ; he 
has shown himself able to exercise dominion, and there 
has been disagreement as to the exercise of this dominion. 
The water area of the earth from its very nature is less 
subject to permanent control than the land area. The 
advantages of permanent control would not ordinarily 
be equal to the effort. In early times this was particu- 
larly true of the sea, which was unknown and feared. 

From the works of ancient writers it is evident that 
the sea was often regarded as susceptible of possession 
in the same manner as land. There were also early 
declarations, as among Roman jurists, that " the use of 
the sea is as free to all men as the air." Et quidem 
naturali jure communia sunt omnium haec: aer et aqua 
profluens et mare et per hoc litora maris. (Inst. 2, 1, 1.) 

The claims of the Phoenicians, the Persians, the 
Greeks, the Macedonians, and others over the Eastern 
Mediterranean Sea gave rise to many struggles as did 
the claims of Carthage and Rome to the mid-Mediter- 
ranean. Other rivalries for control of the Mediterra- 
nean followed to which the Crusades added importance. 

The idea of maritime sovereignty came to be the pre- 
vailing one, however, during the Middle Ages. The 
prevalence of lawlessness at sea in the form of piracy 
and otherwise during the Middle Ages required a strong 
hand to suppress. It was natural that a state should 
protect its neighboring trade routes, and its own traders, 
as well as foreign traders who also would gladly yield 
obedience in return for this protection. The commerce 
of the Italian state was, during this period, very impor- 
tant. The marriage of the sea celebrated by the city of 
Venice from the latter part of the twelfth century was 
emblematic of the authority which that city had at the 
time over the Adriatic. Venice from time to time 


claimed and exercised the privilege of excluding others 
from the use of the Adriatic. The restrictive measures 
were usually taken with a view to protecting trade and 
commerce in these early days. 

The Italian writers even before Bartolus maintained 
that cities like Venice and Genoa having ports had juris- 
diction and sovereignty in the neighboring sea to 100 
miles and even farther if it was not near another State. 

With the traversing of the great seas by voyages of 
discovery and commerce and the opening of the Western 
Hemisphere new problems arose. The Portuguese had 
cruised along the coast of Africa and to India. Spain 
was also striving for maritime power and Columbus dis- 
covered America under Spanish patronage. The papal 
bull of Alexander VI in 1493 confirmed to Ferdinand 
and Isabella all lands found or to be found west of a 
meridian 100 leagues west of the Azores. Spanish mari- 
time power was unable to maintain exclusive control of 
the seas. The English, Dutch, and French sought con- 
trol of the sea. 

Even as early as the twelfth century the Black Book 
of the Admiralty (1.58) refers to the sea belonging to 
the King of England — " la mer appartenant au roi d'An- 
gleterre." Other States also claimed extended maritime 
jurisdiction and it was inevitable that with the growth 
of maritime commerce and the use of the sea conflicts 
would arise. 

The documents of the late Middle Ages show many con- 
flicting claims to maritime jurisdiction. Not merely were 
there conflicting claims but often the attempt to maintain 
the claims resulted in the use of force and varied re- 
prisals. Occasionally treaties were made in regard to 
the use of the sea, but till modern times treaties and prac- 
tice showed little tendency toward the recognition of fun- 
damental principles of maritime jurisdiction. 

Rulers in their titles and proclamations sometimes as- 
serted dominion which was never exercised. Power was 


often exercised arbitrarily because there were no ac- 
cepted bounds of authority. After the Middle Age period 
appeal to precedent and custom in support of State acts 
became more common. Claims and counter claims fill 
many pages of royal proclamations and decrees, and of 
argumentative treatises. It was not till the seventeenth 
century that the questions of maritime jurisdiction in 
the modern sense became especially prominent. The 
titles, king of the sea, lord of the ocean, successor to Nep- 
tune, had been used by different rulers and in varying 
sense throughout many centuries and medals had been 
struck proclaiming these titles. 

Hugo Grotius had prepared in 1604^-5 a treatise De 
Jure Praedae which was in the nature of a brief for 
the Dutch East India Co. This remained unknown till 
1864 and was published in 1868. Chapter XII of this 
brief appeared anonymously in 1608 as Mare Liberum. 
It defends the rights of the Dutch as against the Portu- 
guese pretentions particularly in the East Indian waters. 
Grotius endeavors by reference to the writers of Greece 
and Rome, to the Holy Scriptures and other sources to 
maintain that no nation could have exclusive jurisdiction 
over the sea and its navigation and trade. 

Gentilis seems to have been unduly hopeful when writ- 
ing in the early seventeenth century he expressed himself 
in Hispanicae Advocationis, 1613, Book I, Chapter VIII, 
De marino territorio tuendo, saying " Fruantur Hollandi, 
fruantur mari omnes, sed citra injuriam alienae juris- 
dictionis. Sed et meminerint omnes, esse et modum ma- 
rini, atque omnis itineris. Meminerint, alia olim indis- 
tinct a, quae distincta sunt hodie, et cautissime servandam 
distinctionem juris gentium dominiorum atque jurisdic- 
tionum." "Let the Dutch enjoy, let all enjoy the use of 
the sea, but without violation of another's jurisdiction. 
On the other hand also let all remember there is likewise 
a limit to marine as well as to other journeying. Let 
them remember that other things once unsettled are now 


settled and that the demarcation as to dominion and ju- 
risdiction of the law of nations should be most carefully 
observed." In this chapter Gentilis also affirms territory 
consists both of land and water: "At ego, quod olim 
scripsi in libris bellicis, territorium et de terris dici, et de 
aquis." In the discussion following this statement Gen- 
tilis makes the distinction between territory and juris- 
diction and shows that it has been recognized. 

Grotius sums up the best opinion of the early days of 
the seventeenth century, though not following Gentilis, 
saying : 

It would seem that dominion over a part of the sea is ac- 
quired in the same manner as other dominion ; that is, as said 
above, because it appertains to a person or to a territory — as 
appertaining to a person when he has a fleet, which is a sea army, 
in that part of the sea ; as appertaining to territory in so far as 
those who sail in the adjacent part of the sea can be commanded 
from the shore no less than if they were upon land. (De Jure 
Belli ac Pacis. Lib. II., c. 3, 13.) 

The Mare Liberum of Grotius did not attract immedi- 
ate attention. Seraphin de Freitas made a clever reply in 
behalf of the Spanish, which was published in 1625. 

The Mare Clausum seu de Dominio Maris by John Sel- 
den published in 1635 particularly called attention to the 
Mare Liberum of Grotius and joined issue with the posi- 
tions taken by Grotius. Selden endeavors with many 
supporting references to prove that the sea may be sub- 
jected to the private dominion or ownership as well as the 
land and that the sea about Great Britain has always 
belonged to Great Britain. 

Other pamphlets and books on either side of the ques- 
tion appeared. Graswinckel, in an ostensible reply to 
Burgus, who in 1641 had defended Genoa's claim to 
dominion of the Ligurian Sea, attacked Selden. Gras- 
winckel also replied to Welwod. The works of Bor- 
oughs, Loccenius, Burman, von der Reck, Schook, 
Boxhorn, and others as well as a translation of Selden's 
Mare Clausum were published about the middle of the 


seventeenth century. Every possible source was cited in 
support of opposing points of view. Many of these books 
were vitriolic in their references to those whose views were 
not in accord with their own. Discussion of maritime 
jurisdiction reached its maximum in the seventeenth cen- 
tury and continued active through the first half of the 
eighteenth century. More and more with the recognition 
of the principle of equality of states and the develop- 
ment of the idea that the sea was res nullius there was 
need of definition of maritime rights. 

From the latter part of the seventeenth century the 
Roman law, the commentaries, and the classical writers 
of Greece and Rome were less the bases upon which 
writers rested their arguments. Texts upon the laws of 
war, on the laws of nations and of nature, reference to 
practice and detailed treatment of special topics multi- 
plied and had to be considered. The early idea of prop- 
erty in the sea was that of complete dominion, involving 
the right to use, to enjoy, or to alienate to the exclusion 
of others, usus, fructus, abusus. This is what Plutarch 
considers Pompey to have attained in 67 B. C, calling it 
" not a sea-command but an out-and-out monarchy and 
irresponsible power over all men. For law gave him 
dominion over the sea this side of the pillars of Her- 
cules." (Plutarch, Pompey XXVI.) The Middle Age 
period generally reaffirmed earlier ideas. The revolu- 
tionary ideas as to the laws of the seas came in the 
seventeenth century, though germs of these ideas can be 
found in earlier periods. 

Codes of sea law for merchants had of necessity grown 
up, otherwise commerce would have been impossible. 
These codes were not always in accord with local law 
but were observed for mutual advantage. As the Law 
of Rhodes served merchants in early times so such codes 
as the Consolato del Mare served the later ages. 

It came to be realized that limits must be set to the 
exercise of authority of one state if other states bordered 


upon the same sea. Some admitted that any state, 
whether large or small, weak or strong, was entitled to 
some authority over the marginal sea which touched its 
coasts. Accordingly if two states were upon opposite 
sides of a sea, as Great Britain and Holland on the oppo- 
site sides of the North Sea, there must be a line limiting 
the extent of the authority of each state. Even Selden, 
referring to the Atlantic and Arctic Oceans, admits of 
that area, " it can not all be called British seas "; yet " the 
nation of Great Britain has very large rights and privi- 
leges of their own in both seas " (Mare Clausum, Bk. 1. 
c. 2). Cicero had held that the main body of the sea 
should be common to all. This was admitted by some 
of the ardent advocates of the mare clausum, while cer- 
tain supporters of mare liberum ' claimed the open sea 
extended to the shore. Gradually, with the develop- 
ment and recognition of mutual rights and obligations, 
extreme nationalistic claims were found to be of little 
advantage or to be of positive disadvantage. Grotius 
in 1625 had spoken of jurisdiction of the sea as " ratione 
territorii, quatenus ex terra cogi possunt, qui in promixa 
maris parte versantur, nee minus quam si in ipsa terra 
reperirentur " (De Jure Belli ac Pacis, Lib. II. c. 3.13). 
Bynkershoek at the beginning of the eighteenth cen- 
tury in his De Dominio Maris proposed a formula not 
unlike earlier ideas but brief, which appealed to man's 
sense of appropriateness. He declared "potestatem 
terrse, finiri, ubi finitur armorium vis." (cap. 2.) " Pro- 
nunciamus mare liberum, quod non possidetur vel uni- 
Versum possideri nequit, clausam, quod post justam 
occupationem navi una pluribusque olim possessum fuit." 
(cap. 7.) This principle set forth by Bynkershoek in 
1702 was not a new principle. Nearly one hundred years 
before the Dutch representative arguing against the 
proclamation issued by James I in 1610 in regard to 
fishing off the English coast had maintained " 2. For that 
it is by the laws of nations, no prince can challenge fur- 


ther into the sea than he can command with a cannon 
except gulfs within their land from one point to another. 
3. For that the boundless and rolling seas are as common 
to all people as the air which no prince can prohibit." 

The treatise of Bynkershoek marks a transition from 
the abstract discussion of the extent of authority of an 
adjacent state over the sea to a concrete basis for the 
authority, namely the ability to exercise the authority. 
Earlier writers had found divine law, natural law, dicta 
of the classics and of Roman law, practice of certain 
states, the claims of rulers, bases for their positions; 
Bynkershoek reduced his formula to the simple basis 
of effectivity. The early writers had approved in some 
cases unlimited control, necessity (Molloy), the horizon 
(Yalin), 100 miles (Bartolus), 60 miles (Bodin), 2 days 
journey (Loccenius), etc. Bynkershoek's proposition to 
limit jurisdiction by the range of cannon from the shore 
was therefore welcomed. The range of cannon in the 
early eighteenth century being about 3 miles, the marine 
league became a commonly accepted limit of maritime 

Early in the eighteenth century the claims of control 
of the Indian seas, the routes to America and other wide 
ocean areas were for the most part discontinued, but just 
how far a state had jurisdiction from its coast was not 
settled even though Bynkershoek's formula was so well 

Other theories had from early times been put forward 
for control over the sea. The needs of the adjacent 
State were put forward by Sarpi in support of the 
claims of Venice. Scandinavian claims to extended 
control were supported by the argument that the nature 
of their mainland and their dependence upon the sea 
required control of a large maritime area. The configura- 
tion of the coast . had been put forward as a basis for 
authority over the sea. Long exercise of control was 
referred to as evidence that control should be continued. 


Treaties, judgments of courts, etc., were put forward to 
maintain claims. 

During many years there had been growing up a 
tendency to differentiate in the exercise of jurisdiction 
according to the nature of the end to be secured. Claims 
to extended jurisdiction to satisfy national and royal 
vanity were, however, often merely empty words. 

While the Roman law showed uniformity in principles 
relating to dominion of water areas, later legislation 
showed great diversities. National ideas, ambitions, and 
exigencies were reflected in laws. While Roman law 
phraseology was sometimes retained, the meaning of the 
words was not uniform. Claims were sometimes more 
or less extended according to the power of the ruler of 
the adjacent territory to enforce his claims. Sometimes 
a ruler would fight for abstract claims but usually they 
had to find an ostensible support in some national ad- 
vantage such as security from attack. 

Some of the extreme claims were first waived by allow- 
ing navigation or simple passage of vessels along the 
coast waters within the area claimed by the State. Sa- 
lutes by lowering of flag or of sails by foreign vessels 
were sometimes required even when navigation was other- 
wise free. It was one of the early claims that the pas- 
sage of a vessel over the sea leaving only the wake which 
soon disappeared was not to be denied by the adjacent 
State because it in no way injured the adjacent State. 
The wind that filled the sails of the passing ship did not 
take away from the breeze that touched the shore. 

There might, however, be just claim to fisheries along 
the coast or to the salt, minerals, and other deposits upon 
the sea bottom adjacent to a State. The fishery rights 
in marginal waters were among the earliest to be asserted 
and maintained. When fish constituted an important 
part of the food supply of Europe, particularly during 
the Middle Ages, fishing rights were the bases of many 
controversies and the transportation of fish gave rise to 
other controversies. Records of the thirteenth century 


show attempts of States to control fisheries along their 
coasts. Long before the questions of jurisdiction were of 
importance, fisheries were the subject of control. 

There were many pamphlets put forth during the 
seventeenth and eighteenth centuries supporting or de- 
nouncing rights at sea and particularly fishing rights. 
The rulers had by laws and decrees, particularly during 
the seventeenth century, regulated fishing and trade in 
fish. There had been many earlier decrees upon the same 
subject but they were not so detailed as some of the 
eighteenth century decrees, which even regulated the sale 
of oysters in the shell. Decrees, ordinances, etc., pre- 
scribed for licenses, permits, registration, place of fish- 
ing, nationality of crew, days of fishing, Sundays and fast 
days, and a French Arret du Conseil d'Etat du 20 Mars 
1786, Art. VI, provided favors for foreigners who mar- 
ried women of Marseille and also that they " soient 
recus membres de la communaute des pecheurs franqois 
aussitot apres leurdit mariage." These decrees did not, 
however, prescribe the limits of the marginal seas, but 
only asserted rights in these seas so far as fishing was 

Though much had been written, and treaties had been 
made and judgments had been rendered, the questions of 
jurisdiction were far from completely settled at the 
beginning of the nineteenth century. Rayneval in the 
preface to his work De la Liberie des Mers in 1811 said, 
"L'Ocean seul semble etre abandonne aux caprices des 
nations, a l'instabilite ou a l'exageration de leurs vues, 
de leurs pretentions et de leur puissance." (P. VII.) 

This uncertainty of the law before the nineteenth cen- 
tury was natural owing to the continual opening of new 
maritime areas by exploration and trade which led to 
readjustments in ideas as to rights. During the 
eighteenth century there had been developing also the 
distinction between belligerent and neutral rights at sea. 
These rights were somewhat defined by the armed neu- 

44003—29 2 


Iralities of 1780 and 1800 and by the American neutrality 
proclamation of 1793 and the act of Congress of 1794. 
It came to be held that a state which took no part in a 
war should not be liable to injury and consequently no 
act of hostility should take place within range from the 
shore of guns on the vessels at sea, which was held to be 
3 miles. 

In all the discussions, opinions, and writings there was 
little difference of opinion as to the jurisdiction of a 
state over the shore itself upon which the sea washed. 
The Koman law granted this even to the lowest tide mark. 
(Inst. II, 1, 3.) The same principles was introduced in 
domestic legislation in different states as in the ordi- 
nances of France of 1534, 1596, and 1581, " Sera repute 
bord et rivage de la mer tout ce qu'elle couvre et decouvre 
pendant les nouvelles et pleines lunes, et jusqu'oii le plus 
grand flot de mers se peut etendre sur les greves." In 
some states as in England the area between high and 
low-water mark was held to be within the jurisdiction 
of the maritime authorities at high tide and of the land 
authorities at low tide, but it was rarely denied that the 
authorities of the adjacent state had jurisdiction to the 
low-water mark. This ancient principle seemed at the 
beginning of the nineteenth century about the only one to 
which there might be said to be adherence. 

During the nineteenth century there were many at- 
tempts by writers of great ability to set forth principles 
which would be generally accepted, but the development 
of commerce and nationalism introduced new problems 
as had exploration and discovery in earlier periods. 

Property on the sea had from earliest times been ex- 
posed to danger. The forces of nature had often de- 
stroyed such property with the lives of those who accom- 
panied it leaving no trace. The temptation to man to 
take property on the sea had been too great to be resisted 
apparently even in periods reaching far back of recorded 
history. Pirate communities vied with each other and 
their leaders lived in state. In the days of Pompey 


pirates controlled the Mediterranean even to the Columns 
of Hercules. Pompey in 67 B. C. by the lex Gabinia was 
given for 3 years unlimited command of the Mediter- 
ranean and for 50 miles along its shores. With this 
authority, and within 3 months, he cleared the Medi- 
terranean of pirates. They returned and later rulers 
had to repeat the campaigns of Pompey in order that the 
Romans might call the Mediterranean mare nostrum. 

Private citizens were sometimes authorized by a state 
to make reprisals upon the citizens or property of the 
citizens of another state. Their acts were often very 
like those of pirates. Other states demanded tribute at 
times which tribute differed very little from the exactions 
of pirates. Privateering in the time of war added an- 
other peril to seafaring life. The attitude of states to- 
ward these acts varied and the exercise of control over 
the sea varied correspondingly. The slave trade gave 
rise to other differences in law and practice among the 
so-called civilized states. Impressment upon the sea 
continued through the early days of the nineteenth cen- 
tury. At the beginning of the nineteenth century it 
would be possible to find precedents or to cite authorities 
for almost any claim a state might wish to make as to 
jurisdiction over the sea. 

The rapid development of the idea of neutrality in the 
nineteenth century following the armed neutralities of 
1780 and 1800 introduced new problems. These prob- 
lems were further complicated by the introduction of 
new means and methods of warfare. Three miles be- 
came a very short range for cannon and many wished the 
range extended. 

Eighteenth century treaties. — Almost as soon as there 
came to be any agreement upon territorial waters, 
treaties were made. The eighteenth century saw the 
gradual development of the idea of a marginal sea and 
the cannon shot was the basis of measurement. This 
followed the idea of Bynkershoek in 1702 of control as 
far as cannon shot could reach. 


The treaty between France and Russia of January 11, 
1787, provided: 

Art. 28. In consequence of these principles, the high contract- 
ing parties pledge themselves reciprocally, in case one of them 
makes war against another power, to never attack the vessels of 
his enemy within cannon range of the coasts of his ally. They 
pledge themselves also to mutually observe the most perfect neu- 
trality in the harbors, ports, gulfs, and other waters included in the 
name of inclosed waters, which belong to them, respectively. 

The treaty between the United States and Great Brit- 
ain, November 19, 1794, provided : 

Art. 25. * * * Neither of the said parties shall permit the 
ships or goods belonging to the subjects or citizens of the other, 
to be taken within cannon shot of the coast, nor in any of the 
bays, port, or rivers of their territories, by ships of war, or others 
having commission from any prince, republic, or State whatever. 
But in case it should so happen, the party whose territorial rights 
shall thus have been violated, shall use his utmost endeavors to 
obtain from the offending party full and ample satisfaction for the 
vessel or vessels so taken, whether the same be vessels of war 
or merchant vessels. 

Austrian ordinance, 1803. — An ordinance respecting the 
observance of neutrality issued by Austria, August 7, 
1803, also provided for the gun range: 

Art. 11. As all vessels without exception should enjoy the pro- 
tection that is derived from neutrality and perfect security in all 
of the ports, roadsteads, and along the coasts subject to our 
dominion, hostilities by one or more vessels of powers at war will 
not be permitted in the said parts or within gun range of the 
shore, nor, consequently, any combat, pursuit, attack, visit, or seiz- 
ure of vessels. All our authorities, and particularly the mili- 
tary commanders in seaports, must use especial vigilance to this 

Kent's opinion. — Chancellor Kent was inclined in the 
early nineteenth century to take a very liberal view of 
American rights in adjacent waters. He regarded the 
principles applied in England, of including the waters 
between headlands as King's Chambers, as also applicable 
to the American coast. 


Considering the great extent of the line of the American 
•coasts, we have a right to claim, for fiscal and defensive regula- 
tions, a liberal extension of maritime jurisdiction ; and it would 
not be unreasonable, as I apprehend, to assume, for domestic 
purposes connected with our safety and welfare, the control of 
the waters on our coasts, though included within lines stretching 
from quite distant headlands, as, for instance, from Cape Ann to 
Cape Cod, and from Nantucket to Montauk Point, and from that 
point to the capes of the Delaware, and from the south cape of 
Florida to the Mississippi. It is certain that our Government 
would be disposed to view with some uneasiness and sensibility, 
in the case of war between other maritime powers, the use of the 
waters of our coasts, far beyond the reach of cannon shot, as 
cruising ground for belligerent purposes. * * * It ought, at 
least, to be insisted that the extent of the neutral immunity 
should correspond with the claims maintained by Great Britain 
around her own territory, and that no belligerent right should be 
exercised within " the chambers formed by headlands, or any- 
where at sea within the distance of 4 leagues, or from a right 
line from one headland to another." (Commentaries on American 
Law, 14th ed., p. 26.) 

"Alabama " and " Kearsarge? — In 1864 the problem of 
an engagement between two vessels of considerable gun 
range arose in consequence of the arrival of the Confed- 
erate steamer Alabama at Cherbourg. On June 13, 1864, 
Mr. Dayton, minister to France, informed Secretary 
Seward that he had immediately telegraphed to Captain 
Winslow of the United States ship Kearsarge at Flushing 
and received reply that Captain Winslow " will be off 
Cherbourg about Wednesday." Mr. Dayton also pro- 
tested against the sojourn of the Alabama as an unneutral 
use of French ports and to Mr. Seward sent the following 
information : 

You will, doubtless, have received, before this, notice of the 
arrival of the Alabama in the port of Cherbourg, and my protest 
to this Government against the extension of any accommodations 
to this vessel. M. Drouyn de 1'Huys yesterday informed me that 
they had made up their minds to this course, and he gave me a 
copy of the written directions, given by the minister of marine to 
the vice admiral, maritime prefect at Cherbourg, a translation of 
which accompanies this dispatch. But he, at the same time, in- 


formed me that the United States ship of war, the Kearsarge, had 
appeared off the port of Cherbourg, and there was danger of an 
immediate fight between those vessels. That the Alabama pro- 
fesses its entire readiness to meet the Kearsarge, and he believed 
that each would attack the other as soon as they were 3 miles off 
the coast. That a sea fight would thus be got up in the face of 
France and at a distance from their coast within reach of the 
guns used on shipboard in these days. That the distance to which 
the neutral right of an adjoining Government extended itself from 
the coast was unsettled, and that the reason of the old rules, 
which assumed that 3 miles was the outermost reach of a cannon 
shot, no longer existed, and that, in a word, a fight on or about 
such a distance from their coast would be offensive to the dignity 
of France, and they would not permit it. I told him that no other 
rule than the 3-mile rule was known or recognized as a principle 
of international law; but if a fight were to take place, and we 
would lose nothing and risk nothing by its being further off, I 
had, of course, no objection. I had no wish to wound the suscepti- 
bilities of France by getting up a fight within a distance which 
made the cannon shot liable to fall on her coast. I asked him if 
he would put his views and wishes on this question in writing, 
and he promised me to do so. I wrote to Captain Winslow this 
morning, and herewith inclose you a copy of my letter. I have 
carefully avoided in this communication anything which would 
tend to make the Kearsarge risk anything by yielding what seemed 
to me nn admitted right. (Diplomatic Correspondence, U. S. 1864, 
vol. 3, p. 104.) 

The- instructions to the maritime prefect at Cherbourg 
mentioned in Mr. Dayton's dispatch were translated as 
follows : 

We can not permit the Alabama to enter into one of our basins 
of the arsenal, that not being indispensable to place it in a state 
to go again to sea. This vessel can address itself to commerce 
(commercial accommodations), for the urgent repairs it has need 
of to enable it to go out ; but the principles of neutrality, recalled 
in my circular of the 5th of February, do not permit us to give 
to one of the belligerents the means to augment its forces, and 
in some sort to rebuild itself : In fine, it is not proper that one 
of the belligerents take, without ceasing, our ports, and especially 
our arsenals, as a base of their operations, and, so to say, as one 
of their own proper ports. 

You will observe to the captain of the Alabama that he has not 
been forced to enter into Cherbourg by any accidents of the sea, 


and that he could altogether as well have touched at the ports 
of Spain or Portugal, of England, of Belgium, and of Holland. 

As to the prisoners made by the Alabama, and who have been 
placed ashore, they are free from the time they have touched our 
soil ; but they ought not to be delivered up to the Kearsarge, 
which is a Federal ship of war. This would be for the Kearsarge 
an augmentation of military force, and we can no more permit this 
for one of the belligerents than for the other. (Ibid. p. 105.) 

To Captain Winslow in the letter mentioned in his dis- 
patch Mr. Dayton said : 

This will be delivered to you by my son and assistant secretary 
of legation. I have had a conversation this afternoon with Mr. 
Drouyn de l'Huys, Minister of Foreign Affairs. He says they have 
given the Alabama notice that she must leave Cherbourg; but in 
the mean time you have come in and are watching the Alabama, 
and that this vessel is anxious to meet you, and he supposes you 
will attack her as soon as she gets 3 miles off the coast. That 
this will produce a fight which will be at best a fight in waters 
which may or may not be French waters, as accident may deter- 
mine. That it would be offensive to the dignity of France to have 
a fight under such circumstances, and France will not permit it. 
That the Alabama shall not attack you, nor you her, within the 
3 miles, or on or about that distance off. Under such circum- 
stances I do not suppose that they would have, on principles of 
international law, the least right to interfere with you if 3 miles 
off the coast ; but if you lose nothing by fighting 6 or 7 miles off 
the coast instead of 3, you had best do so. You know better 
than I do (who have little or no knowledge of the relative strength 
of the two vessels) whether the pretence of the Alabama of a 
readiness to meet you is more than a pretence, and I do not 
wish you to sacrifice any advantage if you have it. I suggest only 
that you avoid all unnecessary trouble with France ; but if the 
Alabama can be taken without violating any rules of international 
law, and may be lost if such a principle is yielded, you know 
what the Government would expect of you. You will, of course, 
yield no real advantage to which you are entitled, while you are 
careful to so act as to make, uselessly, no unnecessary complica- 
tions with the Government. I ought to add that Mr. Seward's 
dispatch, dated May 20, 1864, was in the following words : " The 
Niagara will proceed with as much dispatch as possible to cruise 
in European waters, and that the Dictator, so soon as she shall 
be ready for sea (which is expected to be quite soon), will follow 
her, unless, in the meantime, advices from yourself and Mr. 


Adams shall be deemed to furnish reasons for a change of pur- 
pose in that respect." That you may understand exactly the 
condition of things here in regard to the Alabama, I send you 
herewith a copy of a communication from the minister of marine 
of the naval prefect at Cherbourg, furnished me by the Minister 
of Foreign Affairs. (Ibid. p. 104 ) 

Naval War College Discussion, 1913. — In Topic I, 
1913, the subject was, " What regulations should be made 
in regard to the use in time of war of the marginal sea 
and other waters?" In the discussion of 1913 it was 
said : " In time of war there is still much difference in the 
practice of states. (1913 Naval War College, Int. Law 
Topics, p. 15.) Following this examples of the diversity 
of practice were given. It was shown that the Institute 
of International Law had in 1894 and in 1912 proposed 
6 miles as the limit of the marginal sea. The Govern- 
ment of the United States in 1896 indicated that it would 
" not be indisposed to consider the adoption of a 6-mile 
limit and in 1913 it was said " The present tendency as 
shown in international conferences is to extend the 
limits of maritime jurisdiction " and the drift was before 
1914 toward a 6-mile limit. 

Waters adjacent to the 8-mile limit. — It has long been 
recognized that for certain purposes a littoral state may 
exercise jurisdiction beyond the 3 -mile limit. In early 
times claims to such authority were very extended. 
While exclusive claims over the water area adjacent to 
the 3-mile limit have been abandoned, there has been a 
general admission that the needs and safety of the neigh- 
boring state may sanction the exercise of certain powers 
in the high sea adjacent to its marginal sea. 

One of the most common grounds of the exercise of 
jurisdiction outside the marginal sea is for the enforce- 
ment of customs regulations and the prevention of smug- 
gling. Laws upon this subject were enacted by nearly 
all maritime states. The states maintained that if they 
had the right to regulate commerce within their ports 
and coasts and to enforce regulations, it was necessary 


to exercise authority at considerable distances from the 
coasts. These laws in regard to the enforcement of 
customs have gradually become better defined and in 
some instances have been repealed. 

Special legislation for other purposes such as sanita- 
tion, safety of life at sea, etc., has been regarded as essen- 
tial by some states. 

Attitude of United States. — In a letter from Mr. Bay- 
ard, Secretary of State, to Mr. Manning, Secretary of 
the Treasury, May 28, 1886, it was stated that for the 
United States — 

We may, therefore, regard it as settled * * * that so far 
as concerns the eastern coast of North America, the position of 
this department has uniformly been that the sovereignty of the 
shore does not, so far as territorial authority is concerned, extend 
beyond 3 miles from low-water mark, and that the seaward 
boundary of this zone of territorial waters follows the coast of 
the mainland, extending where there are islands so as to place 
round such islands the same belt. This necessarily excludes 
the position that the seaward boundary is to be drawn from 
headland to headland, and makes it follow closely, at a distance 
of 3 miles, the boundary of the shore of the continent or of 
adjacent islands belonging to the continental sovereign. 

The position I here state, you must remember, was not taken 
by this department speculatively. It was advanced in periods 
when the question of peace or war hung on the decision. When, 
during the three earlier administrations, we were threatened on 
our coast by Great Britain and France, war being imminent with 
Great Britain, and for a time actually though not formally en- 
gaged in with France, we asserted this line as determining the 
extent of our territorial waters. When we were involved, in the 
earlier part of Mr. Jefferson's administration, in difficulties with 
Spain, we then told Spain that we conceded to her, so far as 
concerned Cuba, the same limit of territorial waters as we claimed 
for ourselves, granting nothing more ; and this limit was after- 
wards reasserted by Mr. Seward during the late Civil War, when 
there was every inducement on our part not only to oblige Spain 
but to extend, for our own use as a belligerent, territorial privi- 
leges. (1 Wharton, Int. Law Digest, p. 107.) 

In 1902 in the hearing on the arbitration of whaling 
and sealing claims at The Hague, Mr. Herbert H. D. 


Pierce, Assistant Secretary of State and delegate of the 
United States, on July 4 said : 

In the first session the arbitrator asked me, " What is the ex- 
tent of jurisdiction which the United States claim to-day in 
Bering Sea?" and I replied that the American Government now 
claims an extent of 3 miles. I wished that this reply might be 
sustained by the Secretary of State, Mr. John Hay. I am now 
in receipt of a dispatch, and in accordance with the authority 
which I have received from the Secretary of State of the United 
States, dated July 3, 1902, I repeat that the Government of the 
United States claims, neither in Bering Sea nor in its other bor- 
dering waters, an extent of jurisdiction greater than a marine 
league from its shores, but bases its claims to jurisdiction upon 
the following principle: The Government of the United States 
claims and admits the jurisdiction of any State over its Terri- 
torial waters only to the extent of a marine league, unless a dif- 
ferent rule is fixed by treaty between two States; even then the 
treaty States alone are affected by the agreement. (1902 Foreign 
Relations Appendix 1, p. 440.) 

Navigation laws of the United States. — As early as 
1790 the United States passed laws in regard to the en- 
forcement of its customs regulations. (1 U. S. Stat. 
145.) The tariff act of the United States of September 
21, 1922, provides for the exercise of authority for cus- 
toms purposes up to 4 leagues from the coast and other 
states have similar legislation as in the codes of several 
of the South American and European states. 

The safety of navigation has led to the enactment of 
many laws under which authority for the purpose speci- 
fied was to be exercised outside the 3-mile belt. The act 
of Congress of the United States of February 19, 1895, 
was of this character. 

Be it enacted by the Senate and House of Representatives of 
the United States of America in Congress assembled, That on and 
after March first, eighteen hundred and ninety-five, the provisions 
of sections forty-two hundred and thirty-three, forty-four hundred 
and twelve, and forty-four hundred and thirteen of the Revised 
Statutes and regulations pursuant thereto shall be followed on 
the harbors, rivers, and inland waters of the United States. 

The provisions of said sections of the Revised Statutes and 
regulations pursuant thereto are hereby declared special rules 


duly made by local authority relative to the navigation of harbors, 
rivers, and inland waters as provided for in article thirty, of the 
act of August nineteenth, eighteen hundred and ninety, entitled 
"An act to adopt regulations for preventing collisions at sea." 

Sec. 2. The Secretary of the Treasury is hereby authorized, 
empowered, and directed from time to time to designate and define 
by suitable bearings or ranges with lighthouses, light vessels, 
buoys, or coast objects, the lines dividing the high seas from rivers, 
harbors, and inland waters. 

Sec. 3. Collectors or other chief officers of the customs shall 
require all sail vessels to be furnished with proper signal lights. 
Every such vessel that shall be navigated without complying with 
the Statutes of the United States, or the regulations that may be 
lawfully made thereunder, shall be liable to a penalty of two 
hundred dollars, one-half to go to' the informer; for which sum 
the vessel so navigated shall be liable, and may be seized and 
proceeded against by way of libel in any district court of the 
United States having jurisdiction of the offense. 

Sec. 4. The words " inland waters " used in this act shall not be 
held to include the Great Lakes and their connecting and tributary 
waters as far east as Montreal; and this act shall not in any 
respect modify or affect the provisions of the act entitled " An act 
to regulate navigation on the Great Lakes and their connecting 
and tributary waters," approved February eighth, eighteen hun- 
dred and ninety-five. 

Approved, February 19, 1895. (28 U. S. Stat. p. 672.), 

Under the above act lines were established along the 
coast of the United States at some points more than 8 
miles beyond the low-water mark. These lines at times 
were within the 3 -mile limit and usually terminated at 
designated marks on shore or at buoys, lightships, or 
lighthouses, thus having little or no relation to the mar- 
ginal sea as accepted in international law: 

Interpretation of act of 1895. — In 1899 a case arose in- 
volving the act of February 19, 1895, and raising question 
of liability in case of an accident in which it was argued 
that an accident within the limits of a line established 
under the act of 1895 would be within the jurisdiction 
of the United States. 

In this case through an accident, Carlson was killed by 
a boat belonging to the respondents and Judge Brown 
said : 


As the maritime law gives no action for death caused by 
negligence on the high seas (The Harrisburg, 119 U. S. 199, 7 
Sup. Ct. 140), this action can rest only upon the State statute; 
and to make that applicable the negligence, or the death, or 
both, must happen within the jurisdiction of the State. The 
location of the accident according to the weight of evidence, 
seems to me clearly more than a marine league, or 3 miles, 
from any part of the shores of the State of New York or New 
Jersey ; nor is there any manner of drawing lines from head- 
land to headland, except as below stated by which this loca- 
tion could be brought intra fauces terrae. Under the act of 
Congress, however, approved February 19, 1895 (28 Stat. 672), 
having reference to the regulations for preventing collisions at 
sea and authorizing the Secretary of the Treasury to designate and 
define the lands dividing the high seas from rivers, harbors, and 
inland waters, the Secretary drew a line extending from Navesink 
Lighthouse NE. % E. about 4y 2 miles to the Scotland light 
vessel, which is 3 miles from the nearest shore on Sandy Hook, 
and thence NNE. % E. through the Gedney Channel whistling 
buoy to Rockaway Point Life Saving Station on the Long Island 
shore. The accident occurred undoubtedly to the westward of that 
line. Even if this line was a couple of miles beyond the usually 
recognized limit of 3 miles from a shore, it is contended that the 
line thus established by the Secretary of the Treasury would be 
valid as an assertion of the exclusive jurisdiction of the United 
States as against other nations, because this extension seaward is 
undoubtedly less than the range of our modern shore batteries 
(see Pom. Int. Law, §§ 144, 150; Wheat. Int. Law, 177) and any 
such extension by the United States, it is urged, extends pari 
passu the jurisdiction and boundaries of the State as its necessary 
incident. In the case of Bigelow v. Nickerson, 17 C. C. A. 1, 70 
Fed. 113, however, to which reference on this point is made, the 
question had reference to the State jurisdiction over the waters 
of Lake Michigan and was quite different from the present ; since 
there the acts establishing the boundaries of the State expressly 
included the waters of the lake. In that case, moreover, it was 
assumed that upon the ocean the State jurisdiction extends but 
a marine league from shore. (See also Manchester v. Massachu- 
setts, 139 U. S. 240, 11 Sup. Ct. 559.) But I doubt whether in 
fixing the line as above indicated, the Secretary of the Treasury 
intended to pass beyond the limit of a marine league, the usually 
accepted boundary. The Scotland lightship does not exceed that 
distance from shore, and if from that vessel a line be drawn to a 
point 1 marine league south of the western end of Rockaway 
Beach, that line will pass through the whistling buoy ; so that the 


Secretary's line seems to agree accurately with the old rule of 
jurisdiction, and the accident would be found to be within the 
State limits. (Carlson v. United New York Sandy Hook Pilots 
Association (1899), 93 Federal Reporter, p. 468.) 

The accident was found to be due to the negligence of 
fellow servants. The libel was dismissed. 

So in this case the action was settled on other grounds ; 
but the conclusion is, from the above decision, that the act 
of February 19, 1895, was not intended to, and did not, 
change the old rule of jurisdiction extending a marine 
league off shore. 

Russo-Japanese War, 1904- — Cases arising in the 
Russo-Japanese War, 1904, showed a clear recognition 
that jurisdiction of the coastal state in time of war is 
limited to three miles. In the case of the Rossia, a Rus- 
sian merchant vessel, captured February 7, 1904, 6 miles 
off the coast of Korea, the Sasebo Prize Court said : 

The limit of territorial waters generally recognized by existing 
international law is 3 nautical miles from the coast. Therefore 
the capture of this vessel at sea, 6 nautical miles from Kushing- 
ham, Corea, was a capture on the high seas, and in no way 
unlawful. (2 Hurst and Bray, Russian and Japanese Prize 
Cases, p. 39.) 

Similarly in the case of the Michael, a Russian deep 
sea fishing vessel, captured 5% miles off the coast of 
Korea, the Sasebo Prize Court said : 

It can not be denied that the Michael was an enemy vessel, and 
that her capture took place after the commencement of hostilities. 
Further, the place of capture was 5% nautical miles from the 
Corean coast, and since the international law regards territorial 
waters as not extending beyond 3 nautical miles from the shore, 
the vessel's capture took place on the high seas. (Ibid. p. 80.) 

Hague rules on maritime war — There had been for 
many years wide differences of opinion concerning rights 
and duties of neutral powers in maritime war. A con- 
vention bearing the title, " Rights and Duties of Neutral 
Powers in Maritime War " was drawn up at The Hague 
in 1907 and has been generally accepted. According to 
its preamble the aim of the Convention, XIII Hague, 


was to harmonize the relations which should exist be- 
tween belligerents and neutrals in time of war. The 
articles relating particularly to territorial waters were 
the first three, as follows: 


Belligerents are bound to respect the sovereign rights of neutral 
powers and to abstain, in neutral territory or neutral waters, 
from all acts which would constitute, on the part of the neutral 
powers which knowingly permitted them, a nonfulfilment of their 


AH acts of hostility, including capture and the exercise of the 
right of visit and search, committed by belligerent vessels of war 
in the territorial waters of a neutral power, constitute a violation 
of neutrality and are strictly forbidden. 


When a ship has been captured in the territorial waters of a 
neutral power, this power must, if the prize is still within its 
jurisdiction, employ the means at its disposal to release the prize 
with its officers and crew, and to intern the prize crew. 

If the prize is not within the jurisdiction of the neutral power, 
the captor government, on the demand of that power, must lib- 
erate the prize with its officers and crew. 

In the Second Peace Conference at The Hague (the 
same conference) the following comment was made upon 
Article I": 

" It has sometimes been asked if there is any occasion to dis- 
tinguish between ports and territorial waters. The distinction 
is comprehensible as to what concerns the duty of the neutral, 
who can not be responsible in the same degree for what happens 
in his territorial waters, over which he often has only a feeble 
control, as for what takes place in the ports subject to his imme- 
diate authority. The distinction is not recognized as to the duty 
of the belligerent, wheh is the same everywhere." (Deux. Conf. 
Int. de la Paix, vol. I, p, 298. ) 

In ratification by the Senate of the United States, it 
was stated that this was voted — 


" With the understanding that the last clause of article 3 of the 
said convention implies the duty of a neutral power to make the 
demand therein mentioned for the return of a ship captured within 
the neutral jurisdiction and no longer within that jurisdiction." 
(Proclamation by the President, Feb. 28, 1909.) 

Articles 25 and 26 provided — 

Art. 25. A neutral power is bound to exercise such surveillance 
as the means at its disposal allow to prevent any violation of the 
provisions of the above articles occurring in its ports or roadsteads 
or in its waters. 

Art. 26. The exercise by a neutral power of the rights laid 
down in the present convention can under no circumstances be 
considered as an unfriendly act by one or the other belligerent 
who has accepted the article relating thereto. 

Doctor Wekberg's comment. — Doctor Wehberg writing 
before the World War said of the Hague Convention 

The right of prize can, of course, only be exercised outside 
neutral waters, as is expressly laid down in article 1 of the 
" Agreement touching the rights and duties of neutrals in case 
of naval war." No decision as to which waters are to be regarded 
as neutral has been arrived at, so that the old international dis- 
putes on this point still continue. 

While this latter article is only meant as " The expression of 
the dominating idea of this portion of international law," (Prot. 
L, p. 297; III., p. 572) article 2 of the agreement gives a special 
decision as to neutral coasts : " All hostilities committed by war- 
ships of belligerents within coastal waters of a neutral power, 
including seizure and the exercise of the right of search form a 
breach of neutrality, and are unconditionally forbidden." In case 
of action in contravention of this, article 3 lays down the follow- 
ing : " If a ship has been captured within the coastal waters of 
a neutral power, that power must, in so far as the prize is still 
within its sovereignty employ all the means at its disposal to 
bring about the release of the prize with her officers and crew, and 
to hold captive the prize crew placed on board her by the captor. 
Should the prize be beyond the bounds of its sovereignty, the cap- 
turing Government must release the prize, with officers and crew, 
at the demand of that power." (Wehberg, Capture in War on 
Land and Sea, p. 62.) 


Russia, 1912. — A dispatch from the American ambassa- 
dor to Russia on February 3, 1912, referring to the laws 
of the years immediately preceding said: 

Russia proposes ultimately to extend her control in every way 
to a distance of 12 miles from all her coasts bordering on the 
ocean. This has not yet been fully accomplished, but only in part. 
The question naturally groups itself into three divisions: 

1. The exercise of customs authority to a distance of 12 miles 
from all her coasts on the open sea. 

This law was approved by the Emperor, December 10/23, 1909, 
promulgated January 1/14, 1910, and is now in force. As yet, 
so far as can be ascertained, no case calling for special interna- 
tional protest has occurred under it. 

2. The extension of Russian jurisdiction over all open-sea fish- 
eries on the Pacific coasts within 12 miles of the lands of the 
Russian Empire. 

This law was passed May 29/June 11, 1911, and went into 
force December 25/January 7, last. 

3. The law extending jurisdiction over fisheries conducted in 
the White Sea and within 12 miles of the Archangel Government 
was reported favorably by the committee to the Duma last June, 
but has not yet been passed. It lies on the table and it is re- 
ported that English influence is responsible for the delay in its 

England has formally protested against all three of these laws 
in particular and against the attitude of Russia in general in 
regard to the extension of jurisdiction from 3 miles to 12. Not 
being, however, specially interested in the Pacific coast fisheries, 
England has confined vigorous action to the Archangel and White 
Sea fisheries, where her interests are large. England hopes to 
be able to get this proposed law postponed long enough to permit 
the matter to be presented before the next Hague Conference in 
1915. The President of the Duma has assured the British am- 
bassador that the project can not be reached by the present Duma, 
and M. Sazonov practically admitted the same thing to me. 

Japan also has protested in general against the whole proposi- 
tion of extension of jurisdiction to 12 miles from shore in the 
open sea, but she has confined her vigorous action to the fisheries 
in the Pacific, where her direct interests are enormous. The 
annua,! Japanese catch of fish in what are now claimed to be 
Russian waters is valued in gross by the Japanese Embassy at 
80,000,000 rubles. 

Japan contends that the section of these laws dealing with 
Pacific fisheries is not only in violation of international law, but is 


also a violation of the spirit of the existing Russo-Japanese fish- 
ery agreement. 

Two Japanese delegates representing the fishing fleet of Japan 
are now here seeking amelioration of present conditions. 

The Japanese Embassy filed a formal note of protest on October 
31 last in regard to Russia's action in the Pacific fisheries, but 
as yet has received no answer. 

The item mentioned by you from the American press of Decem- 
ber 13 in regard to the abandonment by Russia of this policy is an 

On the contrary, M. Sazonov in a long interview last night 
assured me that Russia proposed to maintain the 12-mile limit 
as a permanent policy, though he hinted that it might be modified 
in detail, and frankly stated that Russia had agreed to hold 
conversations with the representatives of Japan and of England, 
especially on the points in which the two countries were respec- 
tively interested. 

Russia contends that the 3-mile limit is obsolete. The distance 
of 3 miles having been set as the conventional range of a cannon, 
it is claimed that with the extension of the range of modern 
ordnance the limit of jurisdiction should be increased to corre- 
spond. (1912 For. ReL, p. 1304.) 

Attitude of Governments, 19H-1918. — The World War 
made it necessary for many States to pronounce what lim- 
its they proposed to fix for their territorial waters as 
regards belligerent and neutral rights. 

In a decree of November 5, 1914, Chile stated — 

It is decreed: 

The contiguous sea, up to a distance of 3 marine miles counted 
from the .low-water line, is considered as the jurisdictional or neu- 
tral sea on the coasts of the Republic for the safeguarding of the 
rights and the accomplishment of the duties relative to the neu- 
trality declared by the Government in case of international con- 
flicts. (1916 Naval War College, Int. Law Topics, p. 19.) 

Subsequently, a decree prescribed that the interior 

'waters of the Straits of Magellan, "Even in the parts 

which are distant more than 3 miles from either bank 

should be considered as forming part of the jurisdictional 

or neutral sea." (Ibid. p. 21.) 

The Netherlands, which had brought the matter of a 
6-mile limit to the attention of the United States in 1896, 

44003 — 29 3 


and to which Secretary Olney had replied he would " not 
be indisposed " to consider such a limit, in its declaration 
of neutrality of August 5, 1914, stated : 

Art. 4. No warships or ships assimilated thereto belonging to 
any of the belligerents shall have access to the said territory. 

* % * $ * 

Art. 13. It is forbidden, in State territory, to equip, arm, or 
man vessels intended for military purposes on behalf of a bellig- 
erent, or to furnish or deliver such vessels to a belligerent. 

Art. 14. It is forbidden, in State territory to supply arms or 
ammunition to warships or ships assimilated thereto belonging 
to a belligerent, or to come to their assistance in any manner 
whatsoever with a view to augment their crew or their -equip- 

Art. 15. It is forbidden in State territory failing previous au- 
thorization by the competent local authorities, to repair warships 
or ships assimilated thereto belonging to a belligerent, or to sup- 
ply them with victuals or fuel. 

Art. 16. It is forbidden in State territory to take part in the 
dismantling or repairing of prizes, except in so far as is necessary 
to make them seaworthy ; also to purchase prizes or confiscated 
goods and to receive them in exchange, in gift, or on deposit. 

Art. 17. The State territory comprises the coastal waters to a 
distance of 3 nautical miles, reckoning 60 to the degree of lati- 
tude, from low-water mark. (Ibid. p. 63.) 

Uruguay decreed on August 7, 1914 — 

Art. 2. In accordance with the principle established by the 
treaty of Montevideo in 1889 (Penal Law, art. 12), and with 
the principles generally accepted in these matters, the waters 
will be considered as territorial waters to a distance of 5 miles 
from the coast of the mainland and islands, from the visible out- 
lying shoals, and the fixed marks which determine the limit of the 
banks not visible. (Ibid. p. 107.) 

A Swedish decree of July 19, 1916, provided that — 

Submarines belonging to foreign powers and equipped for use 
in warfare may not navigate or lie in Swedish territorial waters 
within 3 nautical minutes (5,556 meters) from land or from ex- 
treme outlying skerries, which are not continuously washed over 
by the sea, under peril of being attacked by armed force without 
previous warning. (1917, Naval War College, Int. Law Docu- 
ments, p. 215.) 


Morocco on July 18, 1917, issued regulations fixing 3 
miles as the marginal sea limit. (1918 Ibid. p. 116.) 

On June 18, 1918, Norway issued new regulations stat- 

• 1. The Norwegian Government, who have in the past claimed 
that the territorial waters of Norway extend to 4 miles from the 
shore, have recognized the difficulty of upholding this claim dur- 
ing the war, since it is not recognized by either the British or 
the German Governments. 

2. The Norwegian Government accordingly intimated to His 
British Majesty's Government, on May 3, 1918, that Norwegian 
naval officers have now received instructions that they are to con- 
fine their efforts to maintaining the neutrality of the waters 
within the 3-mile limit, and are not to fire on belligerent ships 
operating outside that limit. (Ibid. p. 118.) 

The limits of territorial waters, stated in other proc- 
lamations and decrees, varied. 

The United States and Italy, 1914- — A royal decree 
of August 6, 1914, " for the purposes of neutrality," fixed 
the limit of Italian territorial waters at 6 nautical miles 
and further provided that — 

Art. 2. In bays, bights, and gulfs, territoria,! waters, for the 
purposes set forth in the foregoing article, lie within a straight 
outward line tangent to 2 circumferences with a 6-mile radius 
and having their centers at the extreme points of the opening of 
the bay, bight, or gulf ; provided the distance between the said 
points does not exceed 20 nautical miles (37,040 meters). 

If the distance between the extreme points of the opening ex- 
ceeds 20 nautical miles, the territorial waters ,lie within a straight 
line drawn between the 2 outermost points of the bay, bight, or 
gulf separated by a distance of at least 20 nautical miles." (1914 
For. Rel. Sup., p. 664.) 

The above action was made known to the Department 
of State of the United States by the Italian Ambassador 
and the receipt of the information was acknowledged. 

In a note of November 6, 1914, the Italian Ambassador 
said to the Secretary of State : 

Whether because of the fact that the limits of the marginal 
sea are not regulated by international conventions or general 
rules of international law — thus leaving every state at liberty 


to fix them within the sphere of its own sovereignty without sub- 
jecting its decision to the recognition of the other states — or 
because of the fact that no comment was made by your excellency 
on the Royal Embassy's communications, His Majesty's Govern- 
ment knows that no objections are made by the Federal Govern- 
ment to the 6-mile limit set by us on our territorial waters for 
the purposes of neutrality. 

Yet, with a view to removing any possible uncertainty, His 
Majesty's Government would be very thankful for a declaration 
which would explicitly convey acceptance by the Federal Govern- 
ment of the decision as adopted. And, in compliance with in- 
structions I have just received on the subject, I have the honor 
to apply to your excellency's tried courtesy for such a declaration. 
(Ibid. p. 665.) 

On November 28, the Acting Secretary of State replied : 

I am compelled to inform your excellency of my inability to 
accept the principle of the royal decree in so far as it may under- 
take to extend the limits of the territorial waters beyond 3 nautical 
miles from the main shore line and to extend thereover the 
jurisdiction of the Italian Government. 

An examination into the question involved leads to the con- 
clusion that the territorial jurisdiction of a nation over the waters 
of the sea which wash its shore is now generally recognized by 
the principal nations to extend to the distance of 1 marine league 
or 3 nautical miles, that the Government of the United States 
appears to have uniformly supported this rule, and that the right 
of a nation to extend, by domestic ordinance, its jurisdiction be- 
yond this limit has not been acquiesced in by the Government of 
the United States. 

There are certain reasons, brought forward from time to time 
in the discussion of this question and advanced by writers on in- 
ternational law, why the maritime nations might deem the way 
clear to extend this determined limit of 3 miles, in view of the 
great improvement in gunnery and of the extended distance to 
which, from the shore, the rights of nations could be defended; 
but it seems manifestly important that such a construction or 
change of the rule should be reduced to a precise proposition and 
should then receive in some manner reciprocal acknowledgement 
from the principal maritime powers; in fine, that the extent of 
the open or high seas should better be the result of some con- 
certed understanding by the nations whose vessels sail them than 
be left to the determination of each particular nation, influenced 
■by the interests which may be peculiar to it. (Ibid. p. 666.) 

HOVERING, 1915-16 31 

Later, on December 12, 1914, the Secretary informed 
the Italian Ambassador — 

That upon further consideration of this subject, while the de- 
partment is obliged to adhere to the opinions expressed in its 
note of the 28th ultimo, it has taken steps to furnish the de- 
partment of the Navy with a copy of the diplomatic correspond- 
ence on this matter, with the request that orders be issued to the 
public ships of the United States notifying them of the royal de- 
cree of August 6 last mentioned above, and giving such further 
instructions as may be appropriate with a view to avoid so far 
as is possible any incident which may raise a question between the 
Governments of Italy and the United States as to the extent 
of the territorial waters of the former country. (Ibid. p. 666.) 

Hovering, 1915-16. — The correspondence between the 
American and British Governments in regard to opera- 
tions of British vessels of war off the coast of the United 
States during the World War touched upon the limits of 
jurisdiction. The British maintained their right to 
cruise beyond the 3-mile limit and the State Department 

In reply it may be stated that the Government of the United 
States advances no claim that British vessels which have been and 
are cruising off American ports beyond the 3-mile limit have not 
in so doing been within their strict legal rights under inter- 
national law. The grounds for the objection of the Government 
of the United States to the continued presence of belligerent 
vessels of war cruising in close proximity to American ports are 
based, not upon the illegality of such action but upon the irrita- 
tion which it naturally causes to a neutral country. (Spec. Sup. 
10 Amer. Jour. Int. Law, p. 384.) 

The " Elida" — The German Imperial Supreme Court 
in Berlin in 1915 had before it a case involving the extent 
of maritime jurisdiction in time of war. In the discus- 
sion of the case of the Elida, May 18, 1915, the court 

It is true that a considerable number of States have extended 
by national law their territorial jurisdiction beyond the 3-mile 
limit, either generally or with regard to certain legal rights. 
This particularly applies to Sweden and Norway, which extended 
their national waters to a distance of 4 miles. A number of 


other States even went much further in this respect. But a special 
international title, valid in relation to the German Empire, and 
therefore to be taken into account by the prize court, does not 
exist, for up to the present time the Swedish claim has been rec- 
ognized only by the Norwegian Government. According to official 
information from the German Foreign Office, Germany especially 
in the course of the discussions concerning this matter which 
took place in 1874, did not accept Sweden's point of view but 
treated the question of national waters as an open one, while 
England insisted upon the 3-mile limit. Similarly in 1897, when 
the Swedish Government addressed a communication to the Ger- 
man Legation at Stockholm concerning the fishery jurisdiction, 
the German Government restricted itself to raising no objection 
against Sweden's claim to a 4-mile bo.undary for the fishery and 
the question of the neutralization of this marine area in case of 
war was not thereby affected. * * * 

Heretofore the maritime boundary of States has been generally 
recognized in theory and practice as being 3 nautical miles distance 
from the coast. Originally it was based on the carrying distance, 
corresponding to the gunnery technique of those times, of ships 
and coast guns. It is true that nowadays this reason is no longer 
applicable. Here, however, the axiom cessante ratione non cessat 
lex ipsa applies, and although numerous proposals and opinions 
have been put forward with regard to a different delimitation of 
the national waters, it can not be asserted that any other method 
has in practice met with the general concurrence of the maritime 
States. * * * 

Furthermore, it must be remembered that even if the exercise 
by a maritime nation of certain official functions, such as those of 
the health and customs authorities, is tolerated beyond the 3-mile 
zone, this by no means represents a concession to the effect that 
in all other respects the waters in question are included within the 
territorial jurisdiction. * * * 

The British Government during the negotiations in the year 
1911 with regard to the holding of an international congress for 
the regulation of the question of coastal waters, decidedly adhered 
to the 3-mile zone; and, accordingly, even in the present war, it 
had Admiral Craddock inform the Government of Uruguay that 
it would not recognize the claims of Uruguay and Argentina to 
an extension of the territorial waters beyond the 3-mile zone. 
It can, therefore, be still less assumed that this boundary has been 
supplanted by another generally acknowledged international regu- 
lation. (Translation, 10 Amer. Jour. Int. Law, p. 916; 1 Entschei- 
dungen des Oberprisengerichts [1915], No. 9.) 


The "Bangor" — In the case of the Bangor, a Nor- 
wegian vessel captured on the ground of unneutral serv- 
ice in the Straits of Magellan, March 14, 1915, the ques- 
tion of the jurisdiction of neutral waters was raised. 
The British prize court passed upon this case on May 
30, 1916, and said, as to the waters of a neutral State : 

Upon the assumption made for the purposes of this case that 
the Bangor was in fact captured within the territorial waters 
of a neutral, the question is whether the vessel was immune from 
legal capture and its consequences according to the law of na- 
tions. In other words, can the owners of the vessel, who are, 
ex hypothesi, to be treated as enemies, rely upon the territorial 
rights of a neutral State and object to the capture? Or must the 
objection to the validity of the capture come from the neutral 
State alone? 

No proposition in international law is clearer or more surely 
established than that a capture within the territorial waters of a 
neutral State is, as between enemy belligerents, for all purposes 
rightful, and that it is only by the neutral State concerned that 
the legal validity of the capture can be questioned. * * * 

Assuming for the purpose of this judgment that Convention 
XIII is binding, it is clear that the convention was only directed 
to the relations between neutral powers and bell'gerent powers, 
and was only intended to apply to questions ar'sing between neu- 
tral powers and belligerent powers as such. Its provisions were 
not intended to deal with any question between belligerents, and 
did not affect the rule relating to capture in territorial waters of 
a neutral State as between two belligerent powers, where the neu- 
tral State did not intervene. 

For these reasons I decide that the objection made by the claim- 
ants to the validity of the capture, even if it took place in neutral 
territorial waters, is not well founded, and I disallow the claim 
with costs. ( [1916] P. 181 ; 5 Lloyd's Prize Oases, p. 308.) 

Treaties. — The treaties concluded with a view to mak- 
ing effective the provisions of legislation of the United 
States in regard to the smuggling of intoxicating liquors 
are of two categories. One group of treaties recognizes 
the 3-mile limit and another group leaves the matter 
without prejudice; 

In the treaties of the United States with Great Britain, 
January 23, 1924 (43 U. S. Stat., pt. 2, p. 1761) ; Cuba, 


March 4, 1926 (44 U. S. Stat., pt. 3, p. 2395) ; Ger- 
many, May 19, 1924 (43 U. S. Stat., pt. 2, p. 1815) 
The Netherlands, August 21, 1924 (44 U. S. Stat., pt. 
3, p. 2013) ; and Panama, June 6, 1924 (43 U. S. Stat., 
pt. 2, p. 1875), the provisions of Article I made pro- 
nouncement similar to the following: 

The High Contracting Parties declare that it is their firm 
intention to uphold the principle that 3 marine miles extending 
from the coastline outward and measured from low- water mark 
constitute the proper limits of territorial waters. 

The corresponding article with certain other states 
reads as follows : 

The High Contracting Parties, respectively, retain their rights 
and claims, without prejudice by reason of this agreement, with 
respect to the extent of their territorial jurisdiction. Belgium 
(U. S. Treaty Series, No. 759, Dec. 9, 1925) ; Denmark, May 29, 
1924 (43 Stat. pt. 2, p. 1809) ; France (U. S. Treaty Series, No. 
755, June 30, 1924) ; Italy, June 3, 1924 (43 Stat. pt. 2, p. 1844) ; 
Norway, May 24, 1924 (43 Stat. pt. 2, p. 1772) ; Spain omits 
"and claims", Feb. 10, 1926 (44 Stat., pt. 3, p. 2465); and 
Sweden, May 22, 1924 (43 Stat., pt. 2, p, 1830). 

Opinion of Supreme Court. — On April 30, 1923, the 
Supreme Court of the United States said : " It now is 
settled in the United States and recognized elsewhere that 
the territory subject to its jurisdiction includes the land 
areas under its dominion and control, the ports, harbors, 
bays, and other inclosed arms of the sea along its coast, 
and a marginal belt of the sea extending from the coast 
line outward a marine league, or 3 geographic miles. " 
(Cunard S. S. Co. v. Mellon (1923) 262 U. S. 100.) 

Central American Court of Justice, 1917. — In the case 
between the Republic of El Salvador and the Republic 
of Nicaragua decided March 9, 1917, referring to the Gulf 
of Fonseca, the court said : 

The theory that the high party defendant accepts as the true 
test of the territoriality of the gulf is one that must be examined 
in the light of the distances traced on the maps, because they give 
an idea of the real, or at least probable, extent of the gulf. The 


geographer Squier fixes it approximately at 50 miles in length by 
30 in width. The technical study by the engineers Barberena and 
Alcaine declares the existence of two zones in which, according 
to the law of nations and the internal laws of the riparian 
States, they may exercise their jurisdiction, to wit, the zone of 1 
marine league contiguous to the coasts, wherein the jurisdiction 
is absolute and exclusive, and the further zone of 3 marine 
leagues, wherein they may exercise the right of vmperium for 
defensive and fiscal purposes. (11 Amer. Jour. Int. Law, pp. 674, 

British attitude, 1923. — In reply to a question as to the 
Russian claim to a 12-mile zone for fishing rights, the 
Undersecretary of State for Foreign Affairs said, April 
30, 1923 : 

The doctrine of territorial waters is not laid down in any inter- 
national instrument, but the jurisdiction of nations over their 
coastal waters has been accepted by usage and is now a recog- 
nized rule of international law; His Majesty's Government have 
always maintained that by international law and practice the 
general limit of territorial jurisdiction is 3 miles, but from time 
to time claims to extend the 3-mile limit have been advanced by 
different States. Such claims, which amount to annexation of the 
high seas, could only be made effective by international agree- 
ment. (163 House of Commons Debates, 5 s., p. 961.) 

The " Fag ernes" — On March 17, 1926, a collision in 
the Bristol Channel occurred 10% or 12% miles off the 
English coast and 9% or 7% miles off the Welsh coast. 
In this collision the steamship Fqgernes was sunk and 
the steamship Cornish Coast was damaged. The lower 
court held that the collision occurred within British 
jurisdiction and the case was then brought to the court 
of appeal and it was argued that the part of the Bristol 
Channel in question was within the pilotage district, 
and therefore within the sovereignty of Great Britain. 
The Attorney General in response to a request from the 
court said that he had been instructed by the Secretary 
of State for Home Affairs to say that — 

The spot where this collision is alleged to have occurred is not 
within the limits to which the territorial sovereignty of His 
Majesty extends. ([1927] P. 311, 319, O. A.) 


In the opinion of Bankes L. J. it is stated that in inter- 
national law writers and jurists do not agree in their 
opinions as to the extent of territorial waters. Lawrence 
L. J. in agreeing that the waters where the collision took 
place were not within British jurisdiction said : 

It is common ground that there is no international treaty or 
convention expressly sanctioning or recogniz'ng any territorial 
rights of the Crown over the Bristol Channel. Further, no evi- 
dence has been adduced that the Crown has possessed itself of, 
or has effectively asserted any territorial rights over, that part 
of the Bristol Channel where the collision occurred. In the ab- 
sence of any express treaty or controlling executive act of the 
Government, the question arises whether there is any established 
general rule of international law for determining the territorial 
character of bays. The consideration of this question has occu- 
pied the greater part of the hearing both in the court below and 
in this court. 

The Attorney General, in the course of his able argument, has 
cited and commented upon the opinion of jurists, the practice of 
nations and the relevant judicial decisions. I do not propose to 
deal w'th these sources of information in detail, but content my- 
self by saying that in my judgment the Attorney General has 
established the proposition that, although the principle of claim- 
ing territorial rights over bays is well established as a rule of 
international law, and although there is no question as to the 
applicability of that principle in the case of bays, the entire land 
boundaries of which form part of the territory of the same state 
and the entrances of which do not exceed 6 sea miles in width, 
yet there is no recognized general rule of international law by 
which it can be determined whether any given bay, with an en- 
trance wider than 6 sea miles, does or does not form part of the 
territory of the State whose shores form its land boundary. Each 
such case must depend upon its own special circumstances. (Ibid. 
311, 327.) 

Some of the early contentions of Great Britain were 
not in accord with this decision. Some of the judges of 
the court of appeal testified they would have agreed with 
the judgment of the lower court if they had been sitting 
with similar evidence before them. There was, however, 
a plain statement of the Government and a decision in ac- 
cord with it that these waters were not within British 
jurisdiction. Lord Justice Bankes stated that the reply 


of the Crown, though given at the instance of the court 
and for the information of the court, did not in his opin- 
ion " necessarily bind the court in the sense that it is 
under an obligation to accept it." 

High sea and national legislation. — The rights of states 
in the high seas are now regarded as fundamental. 
Fundamental rights are never renounced by states with- 
out express and clearly intended act as by an interna- 
tional convention or by a proclamation, e. g., Panama by 
the convention of 1903 grants to the United States " all 
the rights, power, and authority within the zone which 
the United States would possess and exercise if it were 
sovereign." Panama does not renounce or grant sov- 
ereignty and the United States pays $250,000 per year to 
Panama " as the price or compensation for the rights, 
powers, and privileges granted in this convention." 

The freedom of the sea outside the 3 -mile limit is a 
generally recognized right which no single state may 
limit. Laws enacted by certain states sometimes seem 
to be contrary to international law but courts have regu- 
larly held that such a construction of the law ought not 
to be admitted. In the case of the Charming Betsey, 
1804, Chief Justice Marshall, in referring to neutral 
rights said : 

It has also been observed that an act of Congress ought never to 
oe construed to violate the law of nations if any other possible 
construction remains, and consequently can never be construed to 
violate neutral rights, or to affect neutral commerce, further than 
is warranted by the law of nations as understood in this country. 
(2 Cranch Reports, Supreme Court, p. 64.) 

In an earlier decision Chief Justice Marshall admitted 
that — 

" The laws of the United States ought not, if it be avoidable, 
so to be construed as to infract the common principles and usages 
of nations, or the general doctrines of national law." (Talbot v. 
Seeman, 1801, 1 Cranch Reports, Supreme Court, p. 1.) 

Other states have taken the same attitude in regard 
to domestic legislation affecting rights on the high sea. 


In international communications and agreements the 
United States has for many years upheld the 3-mile 
limit as the extent of territorial waters. 

Such recent international agreement as that relating to 
the Aaland Islands, October 20, 1921, states that — 

The territorial waters of the Aaland Islands are considered to 
extend for a distance of 3 marine miles from the low-water mark 
on the islands, islets, and reefs not permanently submerged. 

In general it may be maintained that the right of a 
state to protect itself and to be secure is fundamental and 
this is not lessened because other states engage in war, 
e. g., retaliation even should not in time of war be aimed 
at neutrals though neutrals may be indirectly injured by 
retaliation. Belligerents do not by their declaration of 
war acquire rights to injure neutrals, e. g., Alabama and 
Kearsctrge, 1864, of which Mr. Bayard said in 1886, " We 
claim also that the sovereign of the shore has the right, 
on the principle of self defense to pursue and punish ma- 
rauders on the sea to the very extent to which their guns 
would carry their shot, and that such sovereign has juris- 
diction over crimes committed by them through such 
shot, although at the time of the shooting they were be- 
yond 3 miles from the shore." (Letter to Mr. Manning, 
Secretary of Treasury, 1 Moore, p. 721.) A state may 
also determine the conditions of entrance or even prohibit 
the entrance of vessels of war both in time of peace and 
in time of war, e. g., the Netherlands, declaration of neu- 
trality, August 5, 1914. 


(a) (1) The right of visit and search beyond the 3- 
mile limit upon the high sea is an undeniable belligerent 
right and the authorities of the United States can afford 
no protection against its lawful exercise. 

(2) The protest of the Cygnet is not valid, as these 
waters are not, for the purposes of neutrality, within the 
jurisdiction of the United States. 


(b) The authorities of the United States may use the 
means at their disposal to prevent the diffusion of danger- 
ous gas within 3 miles of the coast. 

(c) The authorities of the United States may exclude 
from its harbors vessels having dangerous gas on board, 
or may prescribe the conditions of entrance thereto for 
such vessels. 


In international communications and agreements the 
United States has for many years upheld the 3-mile 
limit as the extent of territorial waters. 

Such recent international agreement as that relating to 
the Aaland Islands, October 20, 1921, states that — 

The territorial waters of the Aaland Islands are considered to 
extend for a distance of 3 marine miles from the low-water mark 
on the islands, islets, and reefs not permanently submerged. 

In general it may be maintained that the right of a 
state to protect itself and to be secure is fundamental and 
this is not lessened because other states engage in war, 
e. g., retaliation even should not in time of war be aimed 
at neutrals though neutrals may be indirectly injured by 
retaliation. Belligerents do not by their declaration of 
war acquire rights to injure neutrals, e. g., Alabamia and 
Kearsarge, 1864, of which Mr. Bayard said in 1886, " We 
claim also that the sovereign of the shore has the right, 
on the principle of self defense to pursue and punish ma- 
rauders on the sea to the very extent to which their guns 
would carry their shot, and that such sovereign has juris- 
diction over crimes committed by them through such 
shot, although at the time of the shooting they were be- 
yond 3 miles from the shore." (Letter to Mr. Manning, 
Secretary of Treasury, 1 Moore, p. 721.) A state may 
also determine the conditions of entrance or even prohibit 
the entrance of vessels of war both in time of peace and 
in time of war, e. g., the Netherlands, declaration of neu- 
trality, August 5, 1914. 


(a) (1) The right of visit and search beyond the 3- 
mile limit upon the high sea is an undeniable belligerent 
right and the authorities of the United States can afford 
no protection against its lawful exercise. 

(2) The protest of the Cygnet is not valid, as these 
waters are not, for the purposes of neutrality, within the 
jurisdiction of the United States. 


(b) The authorities of the United States may use the 
means at their disposal to prevent the diffusion of danger- 
ous gas within 3 miles of the coast. 

(c) The authorities of the United States may exclude 
from its harbors vessels having dangerous gas on board, 
or may prescribe the conditions of entrance thereto for 
such vessels. 


sioned mail packets are free to enter and depart." In 
November of the same year the Portuguese Government 
notified Great Britain that in respect to the blockade of 
the River Douro "positive instructions had been given 
to the ships of war establishing the blockade to allow the 
British ships of war to enter the port unmolested, and 
not to prevent the delivery and reception there of the 
mails conveying the correspondence or the landing of 
passengers or even the departure of British subjects who 
may wish to embark in the packets." (35 British and 
Foreign State Papers, 862.) 

While there had been differences of opinion as to the 
treatment which mails should receive in time of war, 
these became more marked during the Civil War in the 
United States, 1861-1865. There was much correspond- 
ence upon this subject beginning early in the war. There 
was long correspondence relating to the seizure of the 
Adela, a British merchant vessel having mail on board. 
On October 10, 1862, Earl Russell in a letter to the Brit- 
ish Minister at Washington said: 

It is desirable that you should ascertain from Mr. Seward 
whether the Government of the United States admits the principle 
that Her Majesty's mail bags shall neither be searched nor de- 
tained. (Parliamentary Papers, North America, No. 5, 1863, 
P. 5.) 

A part of this letter of October 10, 1862, not printed 
in this Parliamentary Paper, No. 5, appears in No. 10 as 
follows : 

The question which has arisen in this case as to the seizure of 
Her Majesty's mails on board the Aclela, while it forms a new and 
very important element in this case, deserving very grave con- 
sideration, raises a point of some delicacy and difficulty. Her 
Majesty's Government can not doubt that the Government of the 
United States are prepared to concede that all mail bags, clearly 
certified to be such, shall be exempt from seizure or visitation, 
and that some arrangement shall be made for immediately for- 
warding such bags to their destination in the event of the ship 
which carries them being detained. If this is done, the necessity 


for discussing the claim, as a matter of strict right, that her 
Majesty's mails, on board a private vessel, should be exempted 
from visitation or detention, might be avoided ; and it is, therefore, 
desirable that you should ascertain from Mr. Seward whether 
the Government of the United States admits the principle that 
Her Majesty's mail bags shall neither be searched nor detained. 

In the further correspondence at this time, the attitude 
of the United States and Great Britain is shown in notes 
exchanged between Secretary Seward and the British 
Charge, Mr. Stuart : 

Mr. Stuart to Mr. Seward 

Washington, October 29, 1862. 

Sir: Referring to our conversation of this morning, I beg to 
state, in order to prevent misapprehension, that the principle 
which my Government expects that you will admit, is that all 
mail bags, clearly certified to be such, shall be exempt from seizure 
and visitation, and that some arrangement shall be made for 
immediately forwarding such bags to their destination in the 
event of the ship wh'ch carries them being detained. 

If this principle, is admitted, the necessity for discussing the 
claim, as a matter of strict right, that Her Majesty's mails on 
board a private vessel should be exempt from visitation or deten- 
tion might be avoided. 

I therefore hope that you will allow me to inform Lord Russell 
that there will be no difference of opinion between the two Gov- 
ernments on the point in question. 

I am, etc. 

(Signed) W. Stuart. 

Mr. Seward to Mr. Stuart 

Department of State, 
Washington, November 3, 1862. 
Mr. Seward presents his compliments to Mr. Stuart, and with 
reference to his private note of the 29th ultimo, relative to the. 
exemption of Her Britannic Majesty's mail bags on board of 
private vessels, from visitation or detention, has the honor to 
inclose herewith the copy of a letter which has since been ad- 
dressed by this department to the Secretary of the Nnvy on 
the subject. 

44003—29 4 


Mr. Seward to Mr. Welles 

Department of State, 
Washington, Octooer 31, 1862. 
Sir: It is thought expedient that instructions be given to the 
blockading and naval officers that, in case of capture of merchant 
vessels suspected or found to be vessels of the insurgents or con- 
traband, the public mails of any friendly or neutral power, duly 
certified and authenticated as such, shall not be searched or 
opened, but be put, as speedily as may be convenient on their 
way to their designated destinations. This instruction, however, 
will not be deemed to protect simulated mail-bags, verified by 
forged certificates or counterfeited seals. 
I have, etc. 

(Signed) William H. Seward. 

(Ibid. p. 6.) 

The instructions of the Secretary of the Navy of the 
United States to flag officers relative to the right of 
visit and search on August 18, 1862, stated : 

Fourthly : That to avoid difficulty and error in relation to 
papers which strictly belong to the captured vessel, and mails 
that are carried or parcels under official seals, you will in the 
words of the law, " preserve all the papers and writing found on 
board and transmit the whole of the originals unmutilated to the 
judge of the district to which such prize is ordered to proceed," 
but official seals or locks or fastenings of foreign authorities, 
are in no case, nor on any pretext, to be broken, or cov- 
ered by them read by any naval authorities, but all bags, or 
other things covering such parcels, and duly seized and fastened 
by foreign authorities, will be in the discretion of the United 
States officers to whom they may come, delivered to the consuls, 
commanding naval officers, or legation of the foreign government 
to be opened, upon the understanding that whatever is contraband 
or important as evidence concerning the character of the captured 
vesse,! will be remitted to the prize court, or to the Secretary of 
State at Washington, or such sealed bag or parcels may be at once 
forwarded to this department to the end that the proper authori- 
ties of the foreign government may receive the same without delay. 
(Official Records, War of the Rebellion, Series I, vol. 1, p. 417.) 

This order was a somewhat amplified form of instruc- 
tions transmitted by Secretary of State Seward to Sec- 
retary of Navy Welles by direction of the President. 


Welles did not approve the latter part of this order and 
maintained that the mails should be placed in the custody 
of the court. In his diary of April 13, 1863, Welles 

says : 

On the 18th of August last I prepared a set of instructions 
embracing the mails, on which Seward had unwittingly got com- 
mitted. The President requested that this should be done in 
conformity with certain arrangements which Seward had made 
with the foreign ministers. I objected that the instructions 
which Mr. Seward had prepared in consultation with the foreign- 
ers were unjust to ourselves and contrary to usage and to law, 
but to get clear of the difficulty they were so far modified as not 
to directly violate the statutes, though there remained something 
invidious toward naval officers which I did not like. The budget 
of concessions was, indeed, wholly against ourselves, and the 
covenants were made without any accurate knowledge on the 
part of the Secretary of State when they were given of what he 
was yielding. But the whole, in the shape in which the instruc- 
tions were finally put, passed off very well. Ultimately, however, 
the circular containing among other matters these instructions by 
some instrumentality got into the papers, and the concessions 
were, even after they were cut down, so great that the English- 
men complimented the Secretary of State for his liberal views. 
(1 Diary of Gideon Welles, p. 269.) 

Under a later date, April 21, 1863, Mr. Welles indicates 
that Mr. Seward inferred that Great Britain regarded 
the arrangement in regard to mails as reciprocal though 
Welles does not so regard what had been said. 

In a letter to Secretary Seward of April 11, 1863, Lord 
Lyons protested against holding mails from the Peterhoff 
and these were subsequently forwarded to their destina- 
tion. (Diplomatic Correspondence, U. S. 1863, Pt. 1, 
p. 505, 510.) 

Instructions as to mails. — Instructions from time to 
time had provided for the treatment of mails. Lushing- 
ton's British Manual of Naval Prize Law of 1866 had 
stated in the introduction (p. xii) that: 

The right to search mail steamers and mail bags threatens to 
become a very great inconvenience to neutrals, in consequence of 
the rapid development of postal and passenger services. But, to 


give up the right of searching mail steamers and mail bags alto- 
gether, at all events when they are destined to a hostile port, is 
a sacrifice which can hardly be expected of belligerents. In the 
event of a naval war it is probable that special instructions will 
be issued regulating the duties of commanders in this respect. 
The subject, accordingly, is not treated in this book. 

But the edition of Holland in 1888 states : 

102. The mail bags carried by mail steamers will not in the 
absence of special instructions, be exempt from search for enemy 

French instructions of 1870 had provided for the send- 
ing of mail to the Government authorities, though later 
the word of the postal agent on board was accepted as to 
the character of the mail matter. 

The United States in the Spanish-American War, 1898, 
proclaimed that, " The voyages of mail steamers are not 
to be interfered with except on the clearest grounds of 
suspicion of a violation of law in respect of contraband 
or blockade." (1898, For. Eel. U. S., p. 781.) The same 
principle had been proclaimed by other states in earlier 
wars and had been embodied in treaty provisions be- 
tween some of the leading commercial powers. The 
exemption from interference was grounded upon the 
desire to protect from interference the increasing peace- 
ful interest served by the postal system. 

The Japanese regulations of 1904 embodied advanced 
ideas : 

Art. XXIV. In visiting or searching a neutral mail ship, if the 
mail officer of the neutral country on board the ship swears in 
a written document that there are no contraband papers in cer- 
tain mail bags those mail bags shall not be searched. In case 
of grave suspicion, however, this rule does not apply. 

Art. LXVIII. When a mail steamer is captured mail bags con- 
sidered to be harmless shall be taken out of the ship without 
breaking the seal, and steps shall be taken quickly to send them 
to their destination at the earliest date. 

Secretary Hay in a note to the representative of" the 
United States said: 

THE " PANAMA," 1900 47 

Any interruption of regular postal communication entails such 
serious inconvenience to various interests that, apart from the 
provisions of treaty, a usage has in recent years grown up to 
exempt neutral mails from search or seizure. In presenting this 
matter to the Russian Government you will refer to this fact and 
express the confidence of this Government that, in its treatment 
of the subject, the Russian Government will recognize the liberal 
tendency of recent international usage to exempt neutral mails 
from molestation. (1904 For. Rel. U. 8., p. 772.) 

The practice in regard to the treatment of postal corre- 
spondence was, however, by no means uniform nor could 
any rule be said to be generally accepted. 

The " Panama" 1900. — During the course of the Span- 
ish-American War, 1898, the Panama, a Spanish steamer 
was captured and brought before a prize court which 
declared the vessel lawful prize. The case was appealed 
to the Supreme Court which in the decision said : 

It was argued in behalf of the claimant that, independently of 
her being a merchant vessel, she was exempt from capture by 
reason of her being a mai,l steamship and actually carrying mail 
of the United States. 

There are instances in modern times, in which two nations, by 
convention between themselves, have made special agreements 
concerning mail ships. But international agreements for the 
immunity of the mail ships of the contracting parties in case of 
war between them have never, we believe, gone farther than to 
provide, as in the postal convention between the United States 
and Great Britain in 1848, in that between Great Britain and 
France in 1833, and in other similar conventions, that the mail 
packets of the two nations shall continue their navigation, with- 
out impediment or mo.lestation, until a notification from one of 
the Governments to the other that the service is to be discon- 
tinued; in which case they shall be permitted to return freely, 
and under special protection, to their respective ports. And the 
writers on international law concur in affirming that no provision 
for the immunity of mail ships from capture has as yet been 
adopted by such a general consent of civilized nations as to con- 
stitute a rule of international law. (9 Stat. 969; Wheaton (8th 
ed.), pp. 659-661, Dana's note; Calvo (5th ed.) §§ 2378, 2809; De 
Boeck, §§ 207, 208.) De Boeck, in § 208, after observing that 
in the case of mail packets between belligerent countries, it seems 
difficult to go farther than in the convention of 1833, above men- 


tioned, proceeds to discuss the case of mail packets between a 
belligerent and a neutral country, as follows : " It goes without 
saying that each belligerent may stop the departure of its own 
mail packets. But can either intercept enemy mail packets? 
There can be no question of intercepting neutral packets, because 
communications between neutrals and belligerents are lawful, 
in principle, saving the restrictions relating to blockade, to contra- 
band of war, and the like ; the right of search furnishes belliger- 
ents with a sufficient means of control. But there is no doubt that 
it is possible, according to existing practice, to intercept and seize 
the enemy's mail packets." (176 U. S. Supreme Court Reports 
[1900], p. 535.) 

Mails, 1900-1907. — There had been a growing senti- 
ment in favor of exempting postal correspondence from 
interference as far as this might be possible. The de- 
cisions of courts as in the case of the Panama had not 
found uniform support. In the case of the Argun, a 
Russian vessel taken by the Japanese in 1904, the Higher 
Prize Court at Sasebo said, " But the fact of an enemy's 
vessel carrying the mails is not recognized in the interna- 
tional law now in force, or in the laws of Japan, as a 
ground of exemption from capture, so that this point 
of the protest is overruled." (Takahashi, Int. Law, Rus- 
so-Japanese War, p. 579.) There had been protests 
against the interference by Russia with neutral mail ves- 
sels. The drift of opinion at that time led to the state- 
ment in the Naval War College, International Law 
Topics, 1906, of the conclusion in which it was said : 

(a) Neutral mail or passenger vessels, of regular lines estab- 
lished before and not in contemplation of the outbreak of hostili- 
ties, bound upon regular voyages and furnishing satisfactory 
government certification that they are mail or passenger vessels, 
and do not carry contraband, are exempt from interference except 
on ample grounds of suspicion of action not permitted to a neutral. 

(&) Mail or passenger vessels of belligerents, of similar lines, 
upon regular voyages, plying to neutral ports should be exempt 
from interference under such restrictions as will prevent their use 
for war purposes. 

(c) Mail or passenger vessels, similarly plying between bellig- 
erent ports, may, under such restrictions as the belligerents may 
agree upon, be exempt from interference. (1906, Naval War Col- 
lege, Int. Law Topics, p. 104.) 


In the arguments used in support of these principles, 
it was said : 

At the present time, with the possibilities of telegraphic com- 
munication, it hardly seems reasonable to imagine that important 
war correspondence of a belligerent will be intrusted to the ordi- 
nary course of the mails. Other means are so much more rapid 
and time is such an important element in warfare that it would 
seem that only in rare instances would dispatches of importance to 
the captor be intrusted to the mails. Dispatches thus sent would 
be liable to delay, loss, and other accidents. It may be that, like 
some other regulations, they may come so late that the necessity 
for their existence may have disappeared. Much of the important 
business of the world in time of peace is now carried on by means 
of the telegraph. A much greater proportion is intrusted to the 
telegraph in time of war. (Ibid. p. 93.) 

Somewhat similar arguments were used before The 
Hague Peace Conference in 1907. 

The Hague Conference, 1901 . — Doctor Kriege of Ger- 
many presented to The Hague Peace Conference in 1907 
a proposition that postal correspondence on the high seas 
whatever its character should be inviolable. In support- 
ing this proposition he said : 

We believe that it would be of advantage to establish the prin- 
ciple that postal correspondence forwarded by sea is inviolable. 

Postal relations have in our time such importance, there are 
so many commercial and other interests dependent on the regu- 
larity of the mails, that it is highly desirable to protect them 
from the disturbance which might be caused by naval warfare. 
On the other hand, it is hardly likely that belligerents, who have 
at their disposal for the transmission of their dispatches the 
channels of telegraphy and radiotelegraphy would resort to the 
ordinary mails for official communications relating to military 
operations. The advantages to be derived by belligerents from 
control of the postal service is not to be compared with the harm 
done legitimate commerce by the exercise of this control. 

The most effective means of attaining this object would be to* 
free from all control vessels engaged in regular mail service. 
However, there does not seem to be much likelihood that such 
action will be taken. We must confine ourselves to proclaiming 
that belligerents must take into consideration the special char- 
acter of such vessels and abstain, so far as possible, from exer- 
cising the right of search aboard them. But inviolability of the 
correspondence itself should be absolute, whatever may be the 


nationality of the vessel carrying it. Belligerents would have 
no right, in case of the seizure of a mail steamer, to break the 
seals of bags containing letters for the purpose of examining them, 
and they would be bound to take necessary measures to insure 
their prompt delivery at their destination. (3 Proceedings 
Hague Peace Conference, 1907, translation, Carnegie edition, p. 

XI Hague Convention, 1907. — After discussion the con- 
ference adopted Convention XI relative to certain re- 
strictions with regard to capture in maritime war, con- 
taining the following articles: 

Article 1. The postal correspondence of neutrals or belliger- 
ents, whatever its character may be, official or private, found on 
board a neutral or enemy ship at sea, is inviolable. If the ship 
is detained, the correspondence is forwarded by the captor with 
the least possible delay. 

The provisions of the preceding paragraph do not apply, in case 
of violation of blockade, to correspondence destined for, or pro- 
ceeding from, the blockaded port. 

Art. 2. The inviolability of postal correspondence does not 
exempt a neutral mail ship from the laws and customs of mari- 
time war as to neutral merchant ships in general. The ship, 
however, must not be searched except in case of necessity, and 
then with as much consideration and expedition as possible. (I, 
Ibid. p. 656.) 

The French version is official and is as follows : 

Article 1. La correspondance postale des neutres. ou des belli- 
gtrants, quel que soit son caractere official ou prive, trouvee en mer 
sur un navire neutre ou ennemi, est inviolable. S'il y a saisie du 
navire, elle est expediee avec le moins de retard possible par le 

Les dispositions de l'alinea precedent ne s'appliquent pas, en 
case de violation de blocus, a la correspondance qui est a des- 
tination ou en provenance du port bloque\ 

Art. 2. L'inviolabilite de la correspondance postale ne soustrait 
pas les paquebots-poste neutres aux lois et coutumes de la guerre 
sur mer concernant les navires de commerce neutres en general. 
Toutefois, la visite n'en doit etre effectuee qu'en cas de necessity, 
avec tous les managements et toute la celerite possibles. (I, 
DeuxiSme Conference Internationale de la Paix, p. 664.) 

This convention was ratified by the greater powers 
except Russia. It was stated in the conference that 

THE " MOWE," 1914 51 

parcel post was excluded " from the privileged treatment 
accorded to postal correspondence." The attitude of all 
states might be said to be favorable to inviolability of 
postal correspondence at the outbreak of the World War 
in 1914. 

In the consideration of postal correspondence the words 
were understood to mean communications in writing en- 
trusted to the regular mails. The means of transporta- 
tion of the mails were not exempt from the consequences 
of the war but the mails were not to be unnecessarily 
delayed. The object was to facilitate communication and 
to do this with the minimum of interference. 

En mer. — The French words " en mer " are official and 
have been translated into English as " at sea " and " on 
the high seas." 

The words " en mer " are also used in the Sixth Hague 
Convention of 1907 relative to merchant vessels at the 
outbreak of hostilities. Article 3 provides: 

Les navires de commerce ennemis, qui out quitte leur dernier 
port de depart avant le commencement de la guerre et qui sont 
rencontres en mer ignorants des hostilites, ne peuvent etre con- 
fisques. lis sont seulement sujets a §tre saisis, moyennant l'obliga- 
tion de les restituer apres la guerre sans indemnite, ou a etre 
requisitionnes, ou meme a etre d6truits, a. charge d'indemnite et 
sous l'obligation de pourvoir a la securite des personnes ainsi 
qu'a la conservation des papiers de bord. 

Apres avoir touche a un port de leur pays ou a un port neutre, 
ces navires sont soumis aux lois et coutumes de la guerre maritime. 
(I, Deuxieme Conference Internationale de la Paix, p. 645.) 

In the case of the German sailing vessel, the Mowe, 
before the British Prize Court in November, 1914, one 
of the questions was as to whether the vessel taken in 
the Firth of Forth was " at sea within the meaning of 
the Sixth Hague Convention of 1907." The counsel for 
the owners of the vessel argued that the vessel was seized 
in port and could only be detained, while the Crown 
contended that the vessel was captured at sea and ought 
to be condemned. 


Alternatively, it was alleged, but not proved, that she was taken 
in " territorial waters," and that, therefore, she was not cap- 
tured on the high seas. But I will assume that she was within 
territorial waters when the capture was made. In my view 
that is wholly immaterial. 

The Sixth Hague Convention does not refer to " territorial 
waters." A vessel might be in territorial waters for scores of 
miles either innocently or nefariously, and pass numerous ports 
without any intention to enter any of them. It is idle to say 
that on this account she would be free from capture. * * * 

To illustrate the meaning of the word " port " in the conven- 
tions I would further observe that the word " ports " is used in 
various places in conjunction with, but in contradistinction to, 
roadsteads and to territorial waters. (See Convention XIII, 
where the words " les ports, les rades, ou les eaux territoriales " 
are frequently used.) 

In my view the claimant in his affidavit was accurate when 
he said his vessel was " taken at sea." The words of article 3 
" recontres en mer " are exactly applicable to this case. And I 
have no hesitation in finding that the vessel was captured at sea, 
and not seized in port. 

I therefore decree that the vessel be condemned as lawful 
prize. (The Mowe, P [1915] p. 1.) 

Early period of World War. — During the early- 
period of the World War the attitude favorable to the 
inviolability of postal correspondence, broadly inter- 
preted, continued and a liberal interpretation was given 
to the Eleventh Hague Convention. The regulations of 
the United States, France, Germany, Japan, and some 
other states embodied the provisions of the Eleventh 
Hague Convention. Some states permitted the seizure 
of letters addressed to authorities or to persons residing 
in enemy territory or territory occupied by the enemy. 
Such mail might be forwarded to the naval or other 

The Secretary of State on August 10, 1914, informed 
the Austro-Hungarian Ambassador that there was no 
foreign mail originating in the United States " left on 
hand in New York," and that mails were being dis- 
patched to the Central Powers three or four times per 
week. The mail for the Central Powers which reached 


Great Britain before August 8, 1914, was returned as 
undeliverable. The French Ambassador in a communi- 
cation replying to Acting Secretary of State Lansing 
in regard to certain mail addressed to but not delivered 
in Germany said on September 28, 1914: 

My Dear Mr. Counselor: I am sorry to hear that Mr. George 
S. Viereck's letters have not been received in Germany, but I do 
not see in what way I can usefully interfere in order to eecure 
for him a better postal service in the present circumstances. 

All postal communication is, of course, suppressed between 
belligerent countries. If Mr. Viereck sends his letters by way of 
England or of France, they are sure not to reach Germany any 
more than the letters of any Englishman or any Frenchman. 
His only chance, as I take it, is for him to use neutral ships, 
such as the Dutch ones or any other. 

Believe me [etc.], 


(1914 For. Rel, U. S., Supplement, p. 534.) 

On October 12, 1914, the American Ambassador in 
Great Britain informed the Secretary of State that — 

Sir Edward Grey now informs me after investigation that the 
United States mail on board S. S. Noordam was not interfered 
with by British officials. He asks me to say that if the report of 
interference with it has arisen from the fact that any of the 
letters in question were found to be opened when they reached 
their destination, he would be glad if a specimen of such envelopes 
could be submitted for further investigation. (Ibid. p. 534.) 

Later period of World War. — After the first months 
of the World War various restrictions upon the transmis- 
sion of mails began to be established. Censorship of a 
moderate type in the early weeks soon became very com- 
prehensive. Even communications between the consuls 
in neutral countries with their fellow consuls in bellig- 
erent countries and vice versa were opened and censored. 
On October 14, 1914, the Acting Secretary of State in a 
dispatch to the American Ambassador in Great Britain 
said : 

Department of State, 
Washington, October 22, 191k, 8 p. m. 

378. Your dispatches No. 467, September 19, and No. 470, Sep- 
tember 24. Department is of opinion that correspondence in time 


of war between diplomatic and consular officers in different coun- 
tries sent by ordinary mail may be subject to censorship in the 
same manner as other private letters. But pouches under seal 
passing between diplomatic missions of the United States by mail 
or courier ought not in the opinion of this Government to be 
opened or molested by censors or other officials of foreign govern- 
ments. The same may be said of any official correspondence under 
seal between diplomatic or consular officers and the Department 
of State. Please report any instances of opening mails contrary 
to these rules. (1914 For. Rel. U. S. Supplement, p. 538.) 

Several belligerents issued regulations to the effect that 
consular officers should leave unsealed their correspond- 
ence addressed to foreign countries. So many protest& 
and complaints were received that the Secretary of State 
on November 25, 1914, proposed to the belligerent govern- 
ments the following for regulations for transmission of 
American diplomatic and consular correspondence: 

1. All correspondence between American diplomatic and con- 
sular officers within Austrian territory to be inviolable if under 
seal of office. 

2. No correspondence of private individuals to be forwarded by 
diplomatic and consular officers under official cover or seal. 

3. Official correspondence between American diplomatic offi- 
cers residing in different countries is not to be opened or molested 
if under seal of office. 

4. Official correspondence under seal of office between the De- 
partment of State and American diplomatic and consular officers 
is not to be opened or molested. 

5. Pouches under seal passing between American diplomatic 
missions by mail or courier not to be opened or molested. 

6. Correspondence other than that described in [the] foregoing 
sent by ordinary mail to be subject to usual censorship. (Ibid, 
p. 542.) 

These regulations were approved by some of the gov- 
ernments, but many controversies arose in regard to mails 
of all kinds. It was also argued that the Eleventh Hague 
Convention did not apply because it had not been ratified 
by Bulgaria, Italy, Montenegro, Russia, Serbia, and 

Interference with American madl. — The United States 
had many interests in all the belligerent states and large 


correspondence with those states was normal. The atti- 
tude of the United States early in 1916 may be seen from 
the detailed statement sent by the Secretary of State to 
the American Ambassador in Great Britain, January 4, 

Department advised that British customs authorities removed 
from Danish steamer Oscar Second 734 bags parcel mail en route 
from United States to Norway, Sweden, and Denmark ; that Brit- 
ish port authorities have removed from Swedish steamer Stock- 
holm 58 bags parcel mail en route Gothenburg, Sweden, to New 
York ; that 5,000 packages of merchandise, American property, 
have been seized by British authorities on the Danish steamer 
United States on her last trip to the United States ; that customs 
authorities at Kirkwall, on December 18, seized 597 bags of parcel 
mail from steamer Frederick VIII manifested for Norway, Sweden, 
and Denmark. Other similar cases might be mentioned, such as 
that of the steamer Heligolav, Department inclined to regard 
parcel-post articles as subject to same treatment as articles sent 
as express or freight in respect to belligerent search, seizure, and 
condemnation. On the other hand, parcel-post articles are en- 
titled to the usual exemptions of neutral trade, and the protests 
of the Government of the United States in regard to what consti- 
tutes the unlawful bringing in of ships for search in port, the il- 
legality of so-called blockade by Great Britain, and the improper 
assumption of jurisdiction of vessels and cargoes apply to com- 
merce using parcel-post service for the transmission of commodi- 
ties. Please bring this matter of parcel post formally to the 
attention of the British Government. 

The department is further informed that on December 23, the 
entire mails, including sealed mails and presumably the American 
diplomatic and consular pouches, from the United States to the 
Netherlands, were removed by British authorities from the Dutch 
steamer New Amsterdam; that on December 20 the Dutch vessel 
Noorder Dyke was deprived at the Downs of American mail from 
the United States to Rotterdam, and that these mails are still 
held by British authorities. Other similar instances could be 
mentioned, as the cases of the steamers Rotterdam and Noordam. 
The department can not admit the right of British authorities 
to seize neutral vessels plying directly between American and neu- 
tral European ports without touching at British ports, to bring 
them into port, and, while there, to remove or censor mails car- 
ried by them. Modern practice generally recognizes that mails are 
not to be censored, confiscated, or destroyed on high seas, even 
when carried by belligerent mail ships. To attain same end by 


bringing such mail ships within British jurisdiction for purposes 
of search and then subjecting them to local regulations allowing 
censorship of mails can not be justified on the ground of national 
jurisdiction. In cases where neutral mail ships merely touch at 
British ports, the department believes that British authorities 
have no international right to remove the sealed mails or to censor 
them on board ship. Mails on such ships never rightfully come 
into the custody of the British. mail service, and that service is 
entirely without responsibility for their transit or safety. 

As a result of British action, strong feeling is being aroused in 
this country on account of the loss of valuable letters, money 
orders, and drafts, and foreign banks are refusing to cash Ameri- 
can drafts owing to the absence of any security that the drafts 
will travel safely in the mails. Moreover, the detention of diplo- 
matic and consular mail is an aggravating circumstance in a 
practice which is generally regarded in this country as vexatiously 
inquisitorial and without compensating military advantage to 
Great Britain. Please lay this matter immediately before the 
British Government in a formal and vigorous protest and press for 
a discontinuance of these unwarranted interferences with inviola- 
ble mails. Impress upon Sir Edward Grey the necessity for 
prompt action in this matter. 


Removal of mail. — The taking of mail bound for other 
ports from neutral vessels entering belligerent ports on 
regular voyages became a matter of diplomatic exchange 
of notes. This was also the case in the forcible bringing 
of vessels with mail on board into belligerent ports. In 
a memorandum of January 10, 1916, communicated to 
the British Foreign Office by the American ambassador, 
the position of the United States, as set forth in the fore- 
going dispatch of January 4, 1916, was fully made known. 
(British Parliamentary Papers, Misc. No. 5 [1916] [Cd. 
8173] p. 1.) 

After a delay of two weeks, the following reply was 
made : 

Foreign Office, January 25, 1916. 

Your Excellency: The communication which Your Excellency 
was good enough to make on the 10th instant, regarding the 
seizure of mails from neutral vessels, raises important questions 
of principle in regard to matters which are determined by the 
policy jointly decided and acted upon by the allied Governments. 


His Majesty's Government are therefore compelled to communicate 
with their allies before they can send a reply to your memo- 
randum. They are consulting with the French Government in the 
first instance, and I hope to be in a position before long to state 
the result of this consultation. (Ibid. p. 2.) 

The reply to American communications was in effect 
made the following April through the French ambas- 
sador : 

By the Eleventh Hague Convention and for the reasons above 
mentioned, the signatory powers relinquished the right of thus 
seizing dispatches and declared all postal correspondence to be 

This inviolability marks a departure from the common Jaw 
only as regards " correspondence " that is to say, dispatches or 
"letters" ("lettres missives"), because, as has been seen, it was 
thought, rightly or wrongly, that, belligerents having better means 
of communication by telegraph, posta.l correspondence was without 
interest for war purposes. It follows that, on the one hand, the 
inviolability does not apply to anything sent through the post 
that is not "correspondence," that is to say "letters" ("lettres 
missives") ; and that, on the other hand, it would be giving to 
this inviolability a wider application than it actually has if it 
were held to confer exemption from all examination on articles 
sent by post, even if they were contraband of war. 

In these circumstances the Allied Governments declare: 

1. That as regards their right of visit and search, and even- 
tually of detention and seizure, goods sent in the form of postal 
parcels are not entitled to, and will not receive, other treatment 
than goods sent in any other way. 

2. That the inviolability of postal correspondence, laid down by 
the Eleventh Hague Convention of 1907, detracts in no way from 
the right of the Allied Governments to search, and, if necessary, 
to detain and seize goods concealed in wrappers, envelopes, or 
letters contained in mail bags. 

3. That, faithful to their engagements and duly respecting 
real " correspondence," the Allied Governments will continue for 
the present to refrain from capturing at sea and confiscating 
such correspondence, letters, or dispatches, and that they will 
insure their being forwarded as rapidly as possible, so soon as 
their genuine character has been established. 

April 3, 1916. 

(11 Amer. Jour. Int. Law, Supplement [1916], 405, 409.) 


The treatment of mails continued to be a matter for 
the exchange of notes between the United States and 
other powers. 

The Secretary of State to the British Ambassador 

No. 1186.] 

Depaktment of State, 
Washington, May 24, 1916. 

Excellency : I have the honor to acknowledge receipt of Your 
Excellency's note of April 3, last * * *. 

In reply the Government of the United States desires to state 
that it does not consider that the Postal Union Convention of 
1906 necessarily applies to the interferences by the British and 
French Governments with the oversea transportation of mails 
of which the Government of the United States complains. Fur- 
thermore, the allied powers appear to have overlooked the ad- 
mission of the Government of the United States that post parcels 
may be treated as merchandise subject to the exercise of belliger- 
ent rights as recognized by international law. But the Govern- 
ment of the United States does not admit that such parcels are 
subject to the " exercise of the rights of police supervision, visi- 
tation, and eventual seizure which belongs to belligerents as to all 
cargoes on the high seas," as asserted in the joint note under 

It is noted with satisfaction that the British and French Gov- 
ernments do not claim, and, in the opinion of this Government, 
properly do not claim, that their so-called " blockade " measures 
are sufficient grounds upon which to base a right to interfere with 
all classes of mail matter in transit to or from the Central 
Powers. On the contrary, their contention appears to be that, as 
" genuine correspondence " is under conventional stipulation " in- 
violable," mail matter of other classes is subject to detention and 
examination. While the Government of the United States agrees 
that " genuine correspondence " mail is inviolable, it does not ad- 
mit that belligerents may search other private sea-borne mails 
for any other purpose than to discover whether they contain arti- 
cles of enemy ownership carried on belligerent vessels or articles 
of contraband transmitted under sealed cover as letter mail, 
though they may intercept at sea all mails coming out of and 
going into ports of the enemy's coast which are effectively block- 
aded. The Governments of the United States, Great Britain, and 
France, however, appear to be in substantial agreement as to 
principle. The method of applying the principle is the chief cause 
of difference. (Ibid. 412.) 


In reply a joint memorandum of the French and Brit- 
ish Governments was sent to the United States on Oc- 
tober 12, 1916 : 

10. As for the practice previously followed by the powers in the 
time of former wars, no general rule can easily be seen therein 
prohibiting the belligerents from exercising on the open seas, as 
to postal correspondence, the right of supervision, surveillance, 
visitation, and, the case arising, seizure and confiscation, which 
international law confers upon them in the matter of any freight 
outside of the territorial waters and jurisdiction of the neutral 

:|: :|: :|: ^: :!: 

1.2. The report adopted by the conference of The Hague in 
support of convention 11 leaves little doubt as to the former 
practice in the matter : " The seizure, opening the bags, examina- 
tion, confiscation if need be, in all cases delay or even loss, are 
the fate usually awaiting mail bags carried by sea in time of 
war." (Second Peace Conference Acts and Documents, vol. 1, 
p. 266.) 

:|; ;;: :j: (J: $ 

17. The imperial Russian decree of May 13-25, 1877, for the 
exercise of the right of visit and capture, provides, paragraph 7 : 
" The following acts which are forbidden to neutrals are assimi- 
lated contraband of war : The carrying * * * of dispatches 
and correspondence of the enemy." The Russian imperial decree 
of September 14, 1904, reproduces the same provision. The proce- 
dure followed in regard to the mail steamers, and the prize deci- 
sions bear witness that public or private mails found on board 
neutral vessels were examined, landed, and, when occasion arose, 

18. * * * Thus, * * * in July, 1904, the steamer 
C alohas (British), captured by Russian cruisers, had 16 bags of 
mail * * * seized on board and landed and the prize court of 
Vladivostok examined their contents, which it was recognized it 
could lawfully do. (Russian Prize Cases, p. 139.) 

19. * * * On the other hand, the Japanese Prize Court 
rules acknowledged the power of those courts in the examination 
of prize cases to examine letters and correspondence found on 
board neutral vessels. (Takahashi, "International Law Applied 
to Russo-Japanese War," p. 568.) 

20. The French practice during the War of 1870< is found out- 
lined in the naval instructions of July 26, 1870, under which 
official dispatches were on principle assimilated to contraband, and 

44003—29 5 


official or private letters found on board captured vessels were to 
be sent immediately to the Minister of Marine. 

21. During the South African War the British Government was 
able to limit its intervention in the forwarding of postal corre- 
spondence and mails as far as the circumstances of that war al- 
lowed, but it did not cease to exercise its supervision of the mails 
intended for the enemy. (Ibid. pp. 418, 419.) 

British-Swedish mails. — On December 18, 1915, in a 
communication to the British Government, the Swedish 
minister said : 

The Swedish Government have been informed that the authori- 
ties at Kirkwa.ll have detained postal parcels inclosed in mail bags 
addressed to Sweden from the United States, which were taken 
from the Danish steamship Hellig Olaf during her last voyage 
from New York. In the note which your excellency was good 
enough to send me on the 15th instant, the Swedish Govern- 
ment were further informed that 58 mail bags containing postal 
parcels from Sweden for the United States had been taken from 
the Swedish steamer Stockholm and detained at Kirkwall. There 
is every reason to believe that the majority of the latter parcels 
contained Christmas presents. 

On several occasions, when the British authorities had taken 
measures against Swedish shipping and commerce which seemed 
to the Royal Government to constitute a violation of international 
rules as sanctioned by the ,law of nations, no measure of reprisals 
or retortion had been taken. This procedure on the part of the 
Swedish Government was due to their conviction that His Britan- 
nic Majesty's Government would consider it right and equitable 
to rectify the measures in question. 

The seizure of the parcels on the Hellig Olaf and the Stock- 
holm gives the impression, however, that the British authorities, 
far from wishing to minimize the difficulties, find pleasure in 
increasing them. 

The Royal Government, while protesting in the most formal 
manner against the seizure of the parcels in question, have to 
their great regret felt constrained to direct the Postal Adminis- 
tration in Sweden to detain all goods from or to England sent by 
the parcels mail in transit through Sweden. This measure will 
be maintained by the Swedish authorities ti,ll the matter is 
settled in a manner which the Royal Government consider satis- 
factory, and a guarantee is given against the repetition of an 
incident of this nature, so contrary to international law. (Brit- 
ish Parliamentary Papers, Misc., No. 28 [1916] [Cd. 8322] p. 1.) 


The Swedish Government regarded the taking of mails 
from vessels sailing between neutral ports without justi- 
fication in international law and in retaliation detained 
British mail in transit via Sweden to Russia. 

Sir Edward Grey, on January 1, 1916, gave a detailed 
reply to the communication of December 18, 1915 : 

I have received, and read with considerable surprise, your note 
of the 18th ultimo respecting the examination by the British 
authorities of the parcels mail found on board the Danish steam- 
ship Hellig Olaf and the Swedish steamship Stockholm. You 
inform me that the Swedish Government protest against this 
interference with the parcels mail between Sweden and the United 
States, as contrary to international law. 

It is difficult to understand this contention. The steamship 
Hellig Olaf was carrying a number of postal parcels as to which 
there was reason to suspect that some had an enemy destination. 
The ship was accordingly visited and searched in accordance with 
the well-known and well-established belligerent right. In order 
not to delay the ship unnecessarily, the suspected parcels were re- 
moved for examination, and the ship itself allowed to proceed. 
The result of the examination was to show that one-third of 
the parcels contained absolute contraband destined for Germany. 
These will be put into the prize court. The remainder of the 
parcels have been forwarded to their addresses. In the same way 
the steamship Stockholm was visited and searched. Suspected 
parcels were removed, and the ship sent on. In this case the par- 
cels turned out to be unobjectionable from a belligerent point of 
view, and they too have been dispatched to their destinations. 

These are the plain facts of the incidents, and His Majesty's 
Government is at a loss to imagine what is the breach of inter- 
national law suggested by the Swedish Government. It can not 
surely be intended to dispute that a belligerent has a right to visit 
and search a neutral ship and cargo where he suspects an inva- 
sion of his belligerent rights. The Swedish Government are far 
too familiar with international law to raise such a contention as 
that. Still less can it be supposed that the Swedish Government 
desire to throw doubt on the legality of seizure by a belligerent 
of contraband destined for an enemy country. Is it then sug- 
gested that the fact that the goods in question were being trans- 
mitted by parcels post renders them immune from the operation 
of belligerent rights? I am unaware of any justification for such 
a suggestion. On the contrary, when, at the Second Peace Con- 
ference, it was agreed by the powers which took part in it, to 
grant for the first time immunity in certain circumstances to 


postal correspondence found upon neutral ships on the high seas, 
it was expressly declared in the debate which led up to this 
decision that parcels were " certainly excluded from the privi- 
leged treatment accorded to postal correspondence." Indeed, it 
is obvious that any other decision would have practically de- 
stroyed belligerent rights with respect to contraband and blockade. 
It is further worthy of remark that the right of visit and search, 
even in the case of letter post, was expressly preserved, and that 
letters going to and coming from blockaded ports were exempted 
from the immunity in question. 

The Swedish Government is, of course, perfectly cognizant of 
all these considerations, and I can only suppose that the protest 
which you have been instructed to make is based on some misap- 
prehension of the facts. That, too, must be the explanation of 
their otherwise inexplicable and, I must add, indefensible pro- 
cedure in detaining the British transit mail to Russia. As I under- 
stand your note it is not pretended that the Swedish Government 
has any right to take such action except by way of reprisal or 
retortion. I must take leave to observe that for a friendly govern- 
ment to proceed to reprisals or retortion without asking for or 
receiving any explanation of the alleged offense is a somewhat 
arbitrary procedure. At the least it imposes on the government 
taking such drastic action the duty of making itself quite sure of 
its ground. In this case I feel convinced that after due considera- 
tion the Swedish Government will recognize that the action of 
His Majesty's Government has been perfectly correct. His Maj- 
esty's Government must therefore request the immediate release 
of the British mails, and would welcome any explanation which 
the Swedish Government may wish to offer. 

I desire to add that His Majesty's Government much regrets 
the delay which the exercise of its belligerent rights caused to the 
innocent parcels post by the steamships Helliff Olaf and Stock- 
holm, and to express the hope that no serious inconvenience was 
thereby caused. They have done their utmost to minimize delay 
and inconvenience. (Ibid. p. 3.) 

Lengthy communications between the two govern- 
ments followed and some of these mentioned " smolder- 
ing fires of irritation which may at any moment cause 
serious difficulties." After many months of correspond- 
ence plans were made for the adjustment of difficulties. 

The "Simla" 1915. — In the case of the Simla in 1915 
the British Prize Court was asked to condemn articles 
sent by parcel post and the British Government main- 


tained that these did not fall under article 1 of XI Hague 
Convention of 1907. The brief judgment of the court 

There is no one here to suggest that articles sent by parcel 
post are inviolable. There is no appearance. I condemn the 
goods. (1 Brit. & Col. Prize Cases, p. 281.) 

The " Tubantia " and others. — In the case of the Tuban- 
tia, the Gelria, and the Hollandia, it was proven that rub- 
ber was being shipped in considerable quantities by post. 
In the judgment, the president of the prize court, May, 
1916, said : 

These parcels of rubber were consigned as if they were genu- 
ine postal correspondence, because, I assume, it was thought that 
they would be protected by article 1 of the Eleventh Hague Con- 
vention, whereby the postal correspondence of neutrals or bellig- 
erents — whatever its particular private character — found on board 
a ship on the high seas is declared to be inviolable. They cer- 
tainly are not covered by that convention. The attempt to make 
use of the article as a cloak for parcels of rubber sent by post 
is dishonest in the extreme ; and it shows how little effect is given 
in time of war to those conventions which have been made in time 
of peace. 

My duty is clear, and that is to condemn these thousands of 
parcels seized upon these Dutch vessels as contraband goods go- 
ing to the enemy country. The attorney general has called atten- 
tion to the necessity of making public the fact that such goods 
as these are being shipped in large quantities, and, although con- 
traband, are sent in this way from neutral countries to Germany 
on board neutral ships, as if they were honest postal communica- 
tions. (Tubantia, Gelria, Hollandia, 32 T. L. R., p. 529.) 

The " Noordam." — The British Prize Court in 1919 in 
the case of the Noordam considered the matter of invio- 
lability of mails. The question had arisen as to whether 
bonds and securities in the mails could be seized under 
the provisions of article 1 of XI Hague Convention of 
1907 in regard to the inviolability of postal correspond- 
ence. Lord Sterndale, president of the court, said, 

I am not at all satisfied, to begin with, that bonds and securi- 
ties are correspondence. In some cases I believe the securities 
were inclosed in an envelope with a letter. In some cases the 


evidence shows tbat they were made up into parcels, and when 
made up into parcels in that way if they had been sent by parcels 
post they would be admittedly outside the convention. But it is 
argued that because people choose to pay the letter postal rate 
instead of the parcels postal rate, what is sent in that way be- 
comes inviolable. I can not think that it depends on whether the 
contents go by the letter mail or by the parcel mail. I put some 
instances that have happened during this war of articles such as 
rubber, and the solicitor general mentioned some others, such as 
Aluminum, and all kinds of things which have been sent by letter 
mail. But the answer to that was, " But you do not generally 
send those by letter post," and correspondence must mean letters 
and everything ordinarily sent by letter post. I am not at all 
satisfied that that is right, and I do not know how you would 
work the convention if you were to adopt that method, because 
if you did you would have to inquire into every case and into 
what the habits of people were which induced them to put into 
letters such articles — which I think it would be impossible to 
do. ([1919] p. 255.) 

When this case was appealed the judicial committee of 
the privy council, in a judgment delivered by Lord 
Sumner, May 4, 1920, said: 

No doubt these securities were documents found in the mail bags 
of the mail steamers in question, but it can not be contended that 
everything found in a mail bag at sea and carried at postal rates 
or franked by postage stamps is ipso facto " postal correspond- 
ence " for the purpose of the convention. These documents, 
though printed and engraved matter, are not vehicles of informa- 
tion, and the value of their contents does not lie in what they tell 
the reader. On the contrary, expressed in common form and 
earmarked by serial letters and numbers or otherwise, they are 
identical records of proprietary rights in certain loans and shares 
or in the interest payable thereon, and, by their terms or by mer- 
cantile usage applicable to them, are transferable on delivery. 
To a bona fide buyer the document represents the holder's right 
to a portion of the loan or the share capital as the case may be. 
They are commonly dealt in ; they are a convenient form in which 
to transfer wealth from one country to another, and they require 
no separate assignment nor the execution of any instrument of 
transfer. If, therefore, any incorporeal rights can be assimilated 
to goods and merchandise, they must be such rights as these docu- 
ments represent. If any document can stand outside the descrip- 
tion " postal correspondence," it must be such a document as these. 
The occasion is not opportune for an attempt to define the word 


" correspondence " as used in the convention, but their lordships 
are satisfied that none of these securities come within it. ( [1920] 
A. C. 904.) 

Resume. — It is evident from official statements, discus- 
sions, and judicial opinions that parcel post is not en- 
titled to any special exceptions during war. If goods 
are sent under seal as first-class mail, these goods do not 
thereby become correspondence. The treatment of mails 
and mail vessels was gradually becoming more liberal in 
the latter part of the nineteenth century. The World 
War conditions put to severe tests the provisions of the 
Eleventh Hague Convention so far as it related to mails, 
and the practices of the belligerents frequently created 
friction without bringing any adequate military advan- 
tages. The carriage of mails from a neutral state in the 
neighborhood of a belligerent to another neutral state 
remote from the theater of war should not be interfered 
with without special reasons. The belligerent should not 
be obliged to submit to risks because a person uses first- 
class mail rather than other means of transportation and 
articles which would, if otherwise transported, be contra- 
band do not change in character as regards belligerent 
rights because included in pouches of first-class mail. Of 
course the recognizable official mail of neutrals is exempt 
and the neutral may properly be requested so to designate 
official correspondence that it may not be easily mistaken. 

During the World War it became evident that the 
rules for the regulation of the transportation of postal 
correspondence should be revised in the interest both of 
neutrals and belligerents. 

Treatment of the Gull. — By the statement of the situa- 
tion, the Bee " can not take the Gull in nor spare a prize 
crew to take it in." 

The Gull is apparently innocent and its papers regular 
and it is a mail vessel and the search should therefore 
be carried on with expedition. 

Mail pouches may contain postal correspondence, par- 
cel post, or other matter. Of these, postal correspondence 


alone is declared to be inviolable though questions have 
been raised in regard to other postal matter and as to 
what may properly be included as correspondence. 

In article 2 of XI Hague Convention of 1907, it is 
provided : 

The inviolability of postal correspondence does not exempt a 
neutral mail ship from the ,laws and customs of maritime war as 
to neutral merchant ships in general. The ship, however, must 
not be searched except in case of necessity, and then with as much 
consideration and expedition as possible. 

If the ship is detained under article 1, the mails are 
to be forwarded with the least possible delay. Under 
article 2 the search of the ship is to be " with as much 
consideration and expedition as possible." Both pro- 
visions should be observed as far as possible. Many 
treaties and some practice favors the delivery of sus- 
pected goods on receiving a receipt from the visiting 
vessel as a means of expediting movements of commerce 
and avoiding unnecessary delay of vessels. The search 
in this case is for contraband goods. The obligation 
rests upon the visiting vessels to forward postal corre- 
spondence with the least possible delay. The ends aimed 
at by XI Hague Convention would therefore be gained 
as regards the parties concerned by removing the sus- 
pected mails to the visiting vessel for search. 


(a) The commander of the Bee having grounds for sus- 
picion may lawfully search the mails, and if this would 
cause undue delay, may transfer the mails to the Bee 
for search, in which casei he should forward the postal 
correspondence to its destination as soon as possible. 

(h) Aircraft. — New agencies in war are not entitled 
to special and exceptional rights because of their weak- 
ness, exceptional, or experimental character. Aircraft, 
like submarines, are vulnerable and vary in character. 
There are landplanes, hydroplanes, lighter-than-air 


craft, etc. Reasoning from analogy, e. g., of maritime 
craft, may not be sound unless the principles underlying 
maritime rules are identical. In visit and search at sea, 
the vessel to be visited must lie-to till the visiting vessel 
approaches. This may not be possible when a sea vessel 
summons an aircraft. Even though the same words may 
be used, their content would not be identical. Rules good 
for aircraft against aircraft or seacraft against seacraft 
may not apply in seacraft against aircraft. 

The application of rules should be reasonable and the 
rules should be practicable. That a projectile from a 
seacraft might by chance bring down an aircraft does 
not put the aircraft under seacraft rules nor necessarily 
give the seacraft a right to act on that chance. Force 
must not be used unnecessarily or in such manner as to 
involve undue risk to a neutral. 

The rules of the Commission of Jurists, drawn up in 
1923, have not been and possibly were not expected to be 
ratified, though they show a reasonable consensus of 
opinion of the time in regard to the use of aircraft. 

While neutral aircraft should not be allowed freedom 
to aid the enemy, they should not be unduly restricted. 
Intentional escape or resistance on the part of aircraft 
when summoned to lie-to by sea craft might involve no 
greater or even less risk than compliance with the sum- 

Attack upon an aircraft without summons would clear- 
ly be unjustifiable and make the attacking party liable. 
The summons must be such as will be evident to the air- 
craft and this may be difficult to prove. It is evident 
even from a superficial consideration that the use of air- 
craft has introduced problems into warfare other than 
simply a new dimension. 

Com/mission of Jurists, 1923. — The Commission of Ju- 
rists in 1923 in their draft of rules of aerial warfare, and 
not specially contemplating mixed warfare between mari- 
time and aerial craft, after mentioning lack of or falsi- 


fication of aircraft markings, arming, entrance to pro- 
hibited zones, provided in article 56 that — 

In all other cases, the prize court in adjudicating upon any case 
of capture of an aircraft or its cargo, or of postal correspondence 
on board an aircraft, shall apply the same rules as would be 
applied to a merchant vessel or its cargo or to postal corre- 
spondence on board a merchant vessel. (1924 Naval War College, 
Int. Law Documents, p. 149.) 

Doctor Spaight on "belligerent and neutral aircraft. — 
Dr. J. M. Spaight, who was of the British delegation of 
the commission of jurists which drew up rules for aerial 
warfare and which met at The Hague in 1922-23, has 
given much attention to this aspect of war. He has 
pointed out that little precedent exists for determining 
what law should govern. 

The great war is practically devoid of precedents bearing upon 
the relations of belligerents and neutral aircraft. A few cases did 
occur in which neutral military aircraft were attacked by bellig- 
erent troops or aircraft. * * * But of incidents affecting neu- 
tral civil aircraft there appear to have been none. Civil aviation 
was almost nonexistent in 1914-1918. The belligeient states pro- 
hibited all flying other than that carried cut by their own or their 
allies' military machines, and the neutral states had, as a whole, 
developed aviation to a much smaller extent than the countries 
which were parties to the conflict. No such international air 
traffic as that which is now in existence had made its appearance 
before the end of the war. 

* * * Concrete examples being absent, the most convenient 
text upon which discussion can be based is the tentative legisla- 
tion contained in the Air Warfare Rules drawn up at The Hague 
in 1923. These rules include certain articles defining the right 
of belligerents to interfere with neutral air traffic and to fire upon 
neutral aircraft. The pertinent articles are as follows : 

"Art. 11. Outside the jurisdiction of any state, belligerent or 
neutral, all aircraft shall have full freedom of passage through 
the air and of alighting. 

" Art. 30. In case a belligerent commanding officer considers that 
the presence of aircraft is likely to prejudice the success of the 
operations in which he is engaged at the moment, he may prohibit 
the passing of neutral aircraft in the immediate vicinity of the 
forces or may oblige them to follow a particular route. A neutral 
aircraft which does not conform to such directions, of which it has 


had notice issued by the belligerent commanding officer, may be 
fired upon. 

"Art. 35. Neutral aircraft flying within the jurisdiction of a 
belligerent, and warned of the approach of military aircraft of 
the opposing belligerent, must make the nearest available landing. 
Failure to do so exposes them to the risk of being fired upon. 

"Art. 50. Belligerent military aircraft have the right to order 
public nonmilitary and private aircraft to alight in or proceed 
for visit and search to a suitable locality reasonably accessible. 

" Refusal, after warning, to obey such orders to alight or to 
proceed to such a locality for examination exposes an aircraft 
to the risk of being fired upon. 

"Art. 51. Neutral public nonmilitary aircraft, other than those 
which are to be treated as private aircraft, are subject only to 
visit for the purpose of the verification of their papers." (Air 
Power and War Rights, p. 382.) 

Unquestionably some measure of belligerent interference with 
neutral traffic must be recognized as inevitable and legitimate. 
Military necessity must take precedence of the right of neutral 
states and individuals to continue to carry on their air traffic 
in the theater of war. Generally, apart from liability to capture, 
neutra,l aircraft will be subject to the same war risks as belliger- 
ent private aircraft, but, because they are neutral, will be entitled 
to expect from belligerents the maximum assuagement of the 
rigors of war compatible with military necessities. Those neces- 
sities can be pleaded by belligerents as the justification for inter- 
ference even with neutral public aircraft, but the states to which 
such aircraft belong will naturally demand that belligerents shall 
exercise their war rights with due regard to the official character 
of the aircraft upon which -military necessities make it necessary 
to impose some measure of restraint. Any interference with them 
is a graver matter than it would be where neutral private air- 
craft are concerned, and requires a more urgent military necessity 
to justify it. (Ibid. p. 384.) 

Attempts to escape. — Even on the sea an attempt to 
escape visit and search has not been regarded as resist- 
ance. The fleeing vessel is, however, liable to the use 
of such force as may be necessary to bring it to. A pro- 
vision to this effect is usually embodied in the regulations 
of States' having navies. 

It is evident from the general report of the commis- 
sion of jurists that they did not intend to identify an 
attempt to escape with resistance, for in discussing the 


liability of neutral private aircraft to capture the com- 
mission said of the first ground of liability, 

The first is where it resists the legitimate exercise of belligerent 
rights. This is in harmony with article 63 of the Declaration 
of London. As first submitted to the commission, the text in- 
cluded the words " or flees." On due consideration, however, 
these words were omitted. (1924 Naval War College, Int. Law 
Documents, p. 142.) 

Aerial mail. — The Commission of Jurists at The Hague 
in 1922-23 gave attention to the carriage of mails on 
board aircraft but were considering the action of air- 
craft against aircraft. Article 56 provides: 

A private aircraft captured upon the ground that it has no 
external marks or is using false marks, or that it is armed in 
time of war outs'de the jurisdiction of its own country, is liable 
to condemnation. 

A neutral private aircraft captured upon the ground that it 
has disregarded the direction of a belligerent commanding officer 
under article 30 is liable to condemnation, unless it can justify 
its presence within the prohib.ted zone. 

In all other cases, the prize court in adjudicating upon any 
case of capture of an aircraft or its cargo, or of postal corre- 
spondence on board an aircraft, shall apply the same rules as 
would be applied to a merchant vessel or its cargo or to postal 
correspondence on board a merchant vessel. (1924 Naval War 
College, Int. Law Documents, p. 148.) 

General considerations. — In case an aircraft is sum- 
moned to stop at sea and obeys, if a heavier-than-air ma- 
chine, the results may be a crash involving destruction 
of craft and loss of life of the personnel ; if a lighter-than- 
air craft, the difficulties of visit and approach save in 
exceptional circumstances would be almost insurmounta- 
ble. A hydroplane might under favorable circumstances 
alight. The situation when a sea craft endeavors to visit 
and search an aircraft is one involving exceptional dan- 
gers to the aircraft. Mere suspicion does not justify the 
subjection of aircraft to undue risk. Craft carrying 
mails should not be unnecessarily delayed. The mail 
carrier does not know what are the contents of the mail 
pouches and is not directly concerned with these contents. 


Guilt can not be presumed. Destruction on ground of 
any act prior to the summons can not easily be justified. 
In the report upon article 63 of the Declaration of 
London, cited also by the commission of jurists in 1923. 
the comment on maritime warfare is as follows : 

A belligerent cruiser encounters a merchant vessel and summons 
her to stop in order that it may proceed to visit and search. 
The vessel summoned does not stop, but tries to avoid visit and 
search by flight. The cruiser may employ force to stop her, and 
if the merchant vessel is damaged or sunk, she has no right to 
complain, since she has acted contrary to an obligation imposed 
upon her by the law of nations. If the vessel is stopped, and if 
it is shown that it was only in order to escape the inconvenience 
of visit and search that she had recourse to flight, and that other- 
wise she had done nothing contrary to neutrality, she will not be 
punished for her attempt. If, on the other hand, it is established 
that the vessel has contraband on board, or that she has in any 
way whatever violated her neutral obligations, she will suffer 
the consequences of her infraction of neutrality, but she will not 
undergo any further punishment for her attempt at flight. Some 
thought on the contrary that the ship should be punished for an 
obvious attempt at flight as much as for forcible resistance. It 
was said that the possibility of condemnation of the escaping 
vessel would lead the cruiser to spare her so far as possible. 
But this view did not prevail. (1909 Naval War College, Int. 
Law Topics, p. 145.) 

This report does not admit punishment for attempt at 
flight, but does assume that the vessel may not complain 
if injured in consequence. If, however, the alternative 
to flight should be destruction with loss of life, as would 
ordinarily be the case if a land plane was forced to stop, 
the surface vessel could scarcely assume the right to ex- 
ercise such authority on the mere suspicion of contraband 
in mail pouches. Indeed, the inability of the surface ves- 
sel to carry on war in the air does not confer upon it 
special rights and it may act only to the degree that 
commensurate military advantages would result. The 
bringing down of aircraft because of suspicion as to the 
contents of their mail pouches would be justified only 
when the bringing down could be with reasonable safety 


to aircraft and personnel. Of this the aircraft would 
usually be the judge. Protest might be made to the neu- 
tral state of the aircraft, but to shoot down neutral air- 
craft carrying the mail, which carriage does not assimi- 
late the aircraft in any degree to enemy aircraft, would 
not be justifiable. 

The report of the Commission of Jurists of 1923 in re- 
gard to aircraft states: 

While aircraft are in flight in the air, the operation of visit and 
search can not be effected so long as aircraft retain their present 
form. Article 49, therefore, necessitates the recognition of a right 
on the part of belligerent military aircraft to order nonmilitary 
aircraft to alight in order that the right of visit and search may 
be exercised. They must not only be ordered to alight, but they 
must be allowed to proceed to a suitable locality for the purpose. 
It would be a hardship to the neutral if he was obliged to make a 
long journey for this purpose and the locality must, therefore, not 
only be suitable, but must be reasonably accessible — that is, rea- 
sonably convenient of access. A more precise definition than this 
can scarcely be given ; what is reasonably convenient of access is 
a question of fact to be determined in each case in the light of the 
special circumstances which may be present. If no place can be 
found which is reasonably convenient of access, the aircraft should 
be allowed to continue its flight. (1924 Naval War College, Int. 
Law Documents, p. 141.) 


(h) The commander of the Bee may not take any 
further action in regard to the neutral aircraft carrying 
suspected mail pouches. 

Situation III 


States X and Y are at war. Other states are neutral. 
The Bee, a vessel of war of state X, meets the Nemo, a 
merchant vessel belonging to a citizen of state N and 
flying the flag of N, and bound for a port of Y. The 
Bee brings-to the Nemo and visits and searches the mer- 
chant vessel. The cargo is innocent and the vessel on a 
regular voyage. There are on board certain passengers. 

(a) Ten of these passengers are citizens of state Y of 
the age and capacity that would be called for military 

(b) Ten of the passengers are citizens of neutral states 
but are well known to have been trained as aviators. 

(c) Five are women citizens of state Y, but experi- 
enced aviators. 

(d) Ten of the crew of 20 were born in state Y and 
have previously served in the navy of state Y, though 5 
of these are naturalized citizens of N\ 

The commander of the Bee is convinced that the Nemo 
is innocent of carriage of contraband and is not bound 
for a blockaded port. He can not take the Nemo in or 
spare a prize crew to take it in, but decides to take off 
the passengers mentioned in (a), (&), and (c), and 10 
members of the crew mentioned in (d). State N" protests. 

What action would be legally correct in each case ? 


(a) The 10 passengers who are citizens of state Y even 
though of military age and capacity should not be re- 
moved from the Nemo. 



(b) The 10 passengers who are trained neutral avia- 
tors should not be removed from the Nemo. 

(c) The 5 women passengers who are citizens of state 
Y though trained aviators should not be removed from 
the Nemo. 

(d) The 10 members of the crew should not be removed 
from the Nemo. 


Treaty provisions. — Many treaties have been negoti- 
ated which contain provisions granting immunity to per- 
sons of belligerent nationality when found on neutral 
vessels unless such persons are in the military service of 
the enemy. Some of these were early treaties before the 
days of steam navigation and most of such treaties were 
made during the nineteenth century. The treaties be- 
tween the United States and Prussia and between the 
United States and Ecuador embody common provisions: 

Prussia — Treaty of Amity and Commerce Concluded September 10 



If one of the contracting parties should be engaged in war with 
any other power, the free intercourse and commerce of the sub- 
jects or citizens of the party remaining neuter with the belligerent 
powers, shall not be interrupted. On the contrary, in that case 
as in full peace, the vessels of the neutral party may navigate 
freely to and from the ports and on the coasts of the belligerent 
parties, free vessels making free ends, in so much, that all things 
shall be adjudged free which shall be on board any vessel belong- 
ing to the neutral party, although such things be.long to an enemy 
of the other ; and the same freedom shall be extended to persons 
who shall be on board a free vessel, although they should be 
enemies to the other party, unless they be soldiers in actua.l service 
of such enemy. (8 U. S. Stat., p. 84., This treaty expired by its 
own limitations, October, 1796, but Article XII was revived by 
Article XII of the Treaty of 1828.) 


Ecuador — Treaty of Peace, Friendship, Navigation, and Commerce 
Concluded June 13, 1839 


* * * It is also agreed, in like manner, that the same liberty 
shall be extended to persons who are on board a free ship, with 
this effect, that, although they may be enemies to both or either 
party, they are not to be taken out of that free ship, unless they 
are officers or soldiers, and in the actual service of the enemies : 
Provided, however, and it is hereby agreed, that the stipulations 
in this article contained, declaring that the flag shall cover the 
property, shall be understood as applying to those powers only f 
who recognize this principle ; but, if either of the two contracting 
parties shall be at war with a third, and the other neutral, the 
flag of the neutral shall cover the property of enemies whose gov- 
ernments acknowledge this principle, and not of others. (8 U. S. 
Stat., p. 534. This treaty was terminated August 25, 1892, by 
notice from the Ecuadoran Government.) 

Such treaties concluded for nearly 100 years seem to 
indicate that in the absence of an agreement persons of 
belligerent nationality might be removed from a neutral 
vessel. The treaties also show a growing tendency tow- 
ard the general recognition of the exemption from cap- 
ture of nonmilitary persons of belligerent nationality 
where they travel on neutral vessels. 

In these treaties the persons liable to capture when on 
neutral vessels are usually limited to " officers and sol- 
diers and in the actual service of the enemy." In recent 
years there has been a tendency to query as to whether 
other persons than officers and soldiers may be liable to 
capture. In 1807 in the case of the Orozembo, Sir W. 
Scott said : 

To send out one veteran general of France to take the command 
of the forces at Batavia, might be a much more noxious act than 
the conveyance of a whole regiment. (6 C. Robinson, Reports, 

The Orozembo was, however, regarded as in the mili- 
tary service of the enemy and not merely engaged in 
regular passenger transportation. 

44003— 29— —6 


Numerous treaties refer to officers and soldiers in the 
service of the enemy. Some writers assimilate to these 
any persons actually in the military service even though 
not enrolled, but maintain that these must be distin- 
guished from persons traveling as passengers, without 
manifest evidence that they are connected with the mili- 
tary service. 

Toward the end of the nineteenth century the carriage 
of enemy military persons received more attention. The 
Trent case had disposed of claims to take from neutral 
vessels nonmilitary persons. Exactly what constituted 
military service was not always easy to determine. 

Dana's opinion, 1866. — Dana in a long note to 
Wheaton's International Law gives in 1866 the opinion 
of the time in regard to persons on neutral vessels. 

The right of a belligerent to take noxious persons from an 
innocent neutral vessel. — Although the United States discla.'m 
such a right, and the demand by Great Britain clearly renounced 
any such claim, the subject requires separate consideration. It 
does not raise a question of capturing the vessel for a violation of 
neutrality, but a right of the belligerent to take off such persons 
for his own benefit, without reference to the quality of the neu- 
tral's act, as being done intentionally, or in justifiable ignorance 
of the character of his passengers. Nor does it involve the right, 
once asserted by Great Britain, to take her own seamen from a 
neutral vessel ; for that is not a belligerent right, but an exercise 
of police power for municipal purposes. The doubt on the ques- 
tion propounded arises chiefly from the fact that great numbers of 
treaties have provided that the persons of enemies shall not be 
taken from free ships, unless they be military men in the actual 
service of the enemy; seeming to imply, not only that the latter 
may be so taken, but also that, without this provision, any enemy 
could be so taken, whether a military man or not. The first trace 
of this provision is in a treaty of commerce between the Nether- 
lands and Sweden of 1675. In a clause of that treaty, which se- 
cures freedom to carry enemy goods not contraband in neutral 
vessels, is the further provision that either party to the treaty 
may carry in their vessels the subjects of an enemy of the other 
party, and that they shall not be taken or forced therefrom unless 
they be military commanders or officials — " nee e'os inde evelli aut 
auferri licebit, exceptis tantum ducibus sive officialibus hostilibus." 
(Dumont, Corps Dipl. vii 316.) It next appears in the treaty of 

dana's opinion, 186 6 77 

Nemeguen in 1678, at the end of article 22 — " And, as it has been 
provided above that a free ship shall be free to carry her cargo, 
it is further agreed that this liberty shall extend also to persons 
who shall be found in a free ship, to the effect that although they 
be enemies of one or the other of the contracting parties, yet, 
when in a neutral vessel, they shall not be taken therefrom, pro- 
vided they be not military persons, and effective in the service of 
the enemy." This clause was copied into the treaty between 
Sweden and Holland of the next year ; into the commercial treaty 
of Ryswick of 1697 ; into the treaties of Utrecht of 1713, between 
France and the Netherlands, and France and England; and into 
the treaty of 1739 between France and the United Provinces. 
The only change is, that " actuellement au service desdits ennemis " 
is substituted for " effectivement en service, etc." This clause is 
also in the treaty between France and Hamburg of 1769. 

This provision afterwards appears in the conventions between 
France and the United States of 1778 and 1800, between the 
United States and Holland in 1782, between the United States 
and Sweden in 1783 and 1816, the United States and Prussia of 
1785 ; the treaty between France and England of 1786, and be- 
tween the United States and Spain of 1795 and 1819, and in the 
treaties of the United States with Colombia in 1824, Central 
America in 1825, Brazil in 1828, Mexico in 1831, Chili in 1832, 
Peru in 1851, Venezuela in 1836, and, in fact, with nearly if not 
all the South American States. In the French and English treaty 
of 1786 is added, after the words " actuellement au service desdits 
ennemis," the words, " et se transportant pour etre employes 
comme militaires dans leurs flottes ou dans leurs armees " ; and 
in the treaty between France and Hamburg of 1769, after the 
words " au service des ennemis," is added, " auquel cas, ils seront 
faits prisonniers de guerre." The clause does not exist in any 
form in any treaty between Great Britain and the United States. 
(D'Hauterive et de Cussy, torn. ii. 91, 104, 270; torn. iii. 445. Du- 
mont, vii. i. 366, 440; ii. 389. United States Laws and Treaties, 
viii. passim.) 

Upon the effect of these treaties, Professor Bernard (case of 
the Trent, 14-20) has presented important considerations. He 
argues that if this clause had appeared first in the nineteenth 
century, the inference would be that, at that time, the right to 
take the persons of enemies, not being soldiers, in actual service, 
was, at least, so far matter of doubt as to require or justify its 
exclusion in terms; but that, as it had its origin some 200 years 
ago — when the authority and necessity of prize adjudications were 
not so well settled and understood as now, and the claims of bel- 
ligerents to interdict neutral intercourse with their enemies, and 


neutral carrying-trade of persons and goods, were almost un- 
limited, and their practice loose and irregular, and their rights 
but little settled, and when the precaution was reasonable — the 
fact that the clause has been copied out in later treaties, or rather 
not omitted, does not require the admission that the clause is 
now necessary, and that the law of nations would permit non- 
military persons to be so taken, as the law is now understood and 
acted upon between nations not parties to a treaty having such 
a preventive clause. 

The question remains, How does the existence and history of 
this clause bear upon military persons in actual service found in 
neutral vessels? 

It can not be doubted, that, as between nations parties to such 
a treaty, it is admitted that a class of hostile persons, of a de- 
fined character and in a defined predicament, may be " taken 
out "— " enleves " " tires " " avelli aut auferri " — from the neutral 
vessel. If nations have seen fit to continue these treaties, they 
must be held to intend the same meaning, and though, where 
doubtful, to be always construed in favor of liberty of persons 
and of neutrals, yet to be fairly construed toward the party 
involved in war. M. Hautefeuille, in his pamphlet on the Trent 
case, admits by implication, that, if Messrs. Mason and Slidell 
had been military persons, and so in actual service as to come 
within the terms of this clause, they could have been taken from 
the Trent, although the United States and Great Britain were 
not parties to such a treaty ; for he considers, as M. Thouvenel in 
his letter to M. Mercier of December 3, 1862, seems also to con- 
sider, that these treaties explain and exh.bit the international 
law. A fortiori, these distinguished writers would admit the 
legality of the act between parties to such a treaty. (See also 
Hautefeuille, des Nat. Neutr. ii. 181.) The existence of this 
clause in treaties, at this t me, is certainly an anomaly. It 
doubtless arose from the fact, that, when the clause was first 
used, 200 years ago, and for some time afterwards, it was a 
common practice to take contraband goods from vessels without 
carrying the vessels in for adjudication * * *. 

How do the history and existence of this clause affect nations 
which have no such treaty between them? In view of the settled 
policy of nations to prohibit a,U acts of force on neutral vessels 
dene at the discretion of the belligerent officer, and which look 
to no subsequent judicial determination, it may be safely pre- 
dicted, that, if such a case should arise, it would be held that the 
law of nations could not be kept anchored to treaty provisions 
made two centuries ago, as protections against acts not then 
necessarily considered legal, but only probable or possible, so long 

THE "SIDNEY," 18 94 79 

as any nations should choose to repeat the clause ex majore 
cautela in their later treaties; and that the modern policy of 
nations does not sanction such an act. 

Mr. Madison, Secretary of State, in his dispatch to Mr. Monroe, 
at London, of January 5, 1804, on the subject of impressment of 
our seamen, speaking of the French treaty of 1800, says, " The 
article renounces the claim to take from the vessels of the neutral, 
on the high seas, any person whatever not in the military service 
of an enemy ; an exception which we admit to come within the 
law of nations on the subject of contraband of war. With these 
exceptions, we consider a neutra,l flag on the high seas as a safe- 
guard to those sailing under it. * * * Nowhere will she 
[Great Britain] find an exception to the freedom of the seas, 
and of neutral flags, which justifies the taking away of any 
person, not an enemy in military service, found on board a neutral 
vessel. * * * Whenever a belligerent claim against persons 
on board a neutral vessel is referred to in treaties, enemies in 
military service alone are excepted from the general immunity of 
persons in that situation. And this exception confirms the im- 
munity of those who are not included in it." (Wheaton, Inter- 
national Law (Dana), 8th ed. p. 656 n.) 

The question did not again give rise to much discus- 
sion until the Chino -Japanese War. 

The " Sidney ", 189 %. — During the Chino- Japanese War 
in 1894, two men claiming American citizenship and trav- 
eling under the names of Howie and Brown were taken 
from the French passenger steamer Sidney at Kobe, No- 
vember 4, 1894, while en route for Hong Kong. No ques- 
tion was raised to the right of Japanese authorities to 
search the Sidney. Howie and Brown were supposed to 
have contracted with the Chinese Government to employ 
an invention which they possessed and claimed would 
destroy the Japanese fleets. Controversy immediately 
arose as to the right of the Japanese authorities to remove 
Howie and Brown from a neutral vessel. It would seem 
that neutrals under contract to engage in and en route for 
the purpose of engaging in hostile service, could properly 
be seized, even when on a neutral vessel. 

Institute of International Law resolutions. — The Insti- 
tute of International Law had for some years had before 
it propositions in regard to traffic forbidden to neutrals. 


The propositions were discussed at the Venice session in 
1896, and in the regulation on contraband of war under 
transport service it was provided : 

Sec. 7. The transportation of an enemy's troops, soldiers, or 
agents of war is forbidden : (1) In belligerent waters ; (2) between 
their authorities, ports, possession, armies, or fleets; (3) when 
the transportation is on account of or by order or mandate 
of an enemy, or to bring him either agents with a commission for 
war operations, or soldiers already in his service or auxiliary 
troops or those recruited in violation of neutrality — between neu- 
tral ports, between those of a neutral and those of a belligerent, 
from a neutral point to the army or the fleet of a belligerent. 

The prohibition shall not extend to the transportation of indi- 
viduals who are not yet in the military service of a belligerent, 
even though they have the intention of entering it, or those who 
make the journey as simple travelers without evident connection 
with military service. (Resolutions of the Institute of Interna- 
tional Law, Scott, p. 130.) 

South African War cases, 1900. — Somewhat strained 
relations between Great Britain and Germany were cre- 
ated in 1900 in consequence of visit and search of certain 
German vessels on suspicion of carriage of contraband to 
South Africa. The German authorities objected to delay 
in port of vessels in order to search a mail steamer. The 
German ambassador in a communication to the Mar- 
quess of Salisbury, January 5, 1900, said, 

According to a communication received by the Imperial Gov- 
ernment by telegraph from Aden the day before yesterday, a 
second mail steamer of the German East African line, the " Gen- 
eral," has now been stopped there, occupied by force by British 
troops, and ordered to land her cargo. 

In accordance with instructions received, I have the honor to 
inform your Excellency of the above, and, express. y reserving any 
claims for compensation, to request that orders may be given for 
the immediate release of the steamer and her cargo, for that 
portion of her cargo which has already been landed to be taken 
on board again, and for no hindrances to be placed in the way 
of the ship continuing her voyage to the places mentioned in 
her itinerary. 

I am further instructed to request your Excellency to cause 
explicit instructions to be sent to the Commanders of British 
ships in African waters to respect the rules of international law, 


and to place no further impediments in the way of the trade 
between neutrals. 

I should be obliged if your Excellency would sent me a reply 
at your earliest convenience. (Parliamentary Papers, Africa No. 1 
[1900] Cd. 33, p. 8.) 

On January 17, 1900, the Marquess of Salisbury wrote 
to the British ambassador at Berlin : 

I received with some surprise a communication from the repre- 
sentative of a power with whom Her Majesty's Government be- 
lieve themselves to be on the most friendly terms — worded in so 
abrupt a manner, and couched in language which imputed to 
Her Majesty's naval commanders that they had shown a disrespect 
to international law, and placed unnecessary impediments in the 
way of neutral commerce. There is no foundation for these 

I at once requested the lords commissioners of the admiralty 
and the Secretary of State for India to make inquiries whether 
the facts were as reported to the German Government. 

From reports which have reached Her Majesty's Government 
by telegraph the following appear to be the facts of the case. 

Before the arrival of the vessel at Aden it was already known 
that she had on board among her passengers 31 men of German 
and Flemish nationality who had all the appearance of their 
being on their way to the South African Republics for the purposes 
cf military service there. On her arrival, information reached 
the British resident that there were various suspicious articles 
on board destined for Delagoa Bay, and that boxes of ammuni- 
tion were buried under the reserve store of coal. The senior 
naval officer at Aden thereupon boarded her on the ground of 
strong suspicion of her carrying contraband of war destined for 
the enemy and commenced to search her. * * * 

There seems reason to believe that among the passengers on 
board going to the Transvaal were a number of trained artillery- 
men, but there was no sufficient evidence as to their destination to 
justify further action on the part of the officers conducting the 
search. (Ibid. p. 21.) 

In a speech in the Reichstag on January 19, 1900, 
Count von Billow said : 

4. By the terms " contraband of war " only such articles or 
persons are to be understood as are suited for war, and at the 
same time are destined for one of the belligerents. The class of 
articles to be included in this definition is a matter of dispute, 
and, with the exception of arms and ammunition, is determined, 


as a rule, with reference to the special circumstances of each case, 
unless one of the belligerents has expressly notified to the neutrals 
in a regular manner, what articles it intends to treat as contra- 
band, and has met with no opposition. (Ibid. p. 24.) 

Analogues of contrabcmd. — Misconceptions had arisen 
from an attempt to extend an accepted category of acts 
such as the carriage of contraband to the carriage of per- 
sons. This seems to have been in Mr. Blaine's mind when 
in 1890 he wrote : 

Many writers on international law assimilate the carrying of 
military persons in the service of a belligerent to the carrying 
of contraband goods. But, in order that the question of " contra- 
band of war " may ar!se, both as to the vessel and the person car- 
ried, three things are essential. In the first place, there must be 
an actual state of war. * * * In the second place, in order 
that the vessel may be condemned for carrying contraband, it 
must be shown that she knowingly carried it in such a way as to 
make it clear that it was her intention to take part in the war. 
In the third place, in order that the person may be treated as 
contraband, it must appear that he is in the service of the enemy. 
This requirement is found in many of our treaties and was em- 
bodied in article 14 of the extinct treaty of 1849 between the 
United States and Guatemala, by which it was strictly provided 
that persons on board of the ships of the contracting parties in 
time of war should not be taken out unless they were " officers 
or soldiers and in the actual service of the enemies." (Mr. 
Blaine to Mr. Mizner. 1890 For. Rel., p, 129.) 

It is true that there might be a remote analogy but 

Professor Westlake has indicated the difference : 

* * * Men present no real analogy to contraband, although 
they as well as dispatches are often spoken of as its analogues. 
Men can not be forwarded like goods, in pursuance of an inten- 
tion formed about them by some one else. All that can be done is 
to give them facilities for locomotion, and the question is what 
facilties of the kind the customary law of nations does not allow 
a neutral to afford. Accordingly, the carriage of men has not 
been usually coupled in treaties with the carriage of contraband 
but with the clauses stipulating tlie rule " free ships free goods," 
in which it is common to find it laid down that the freedom of 
the flag covers all persons on board except those in the enemy's 
military service. And by the resolutions of the Institute of Inter- 
national Law on " transport service," which it passed at the same 


time as those on contraband, the only persons whom it is for 
bidden to neutrals to carry are those in a belligerent's military 
service and his diplomatists credited to his ally. The British 
Admiralty Manual includes in the prohibition " civil officials sent 
out on the public service and at the public expense. * * * 
When the persons travel as regular passengers in the ordinary 
course, it must be remembered that the customary right to cap- 
ture even military officers has not been accompanied by any re- 
laxation of the duty to send every neutral ship that is interfered 
with in for adjudication, and that to arrest a passenger liner and 
send her in for adjudication would be an intolerable nuisance. 
The duty referred to can not properly be relaxed, for those who 
capture the men can not be allowed to be judges in their own 
cause, and an adjudication on the ship is the only means of sub- 
mitting their act to legal decision." (2 Westlake, International 
Law, 2d ed., p. 302.) 

Declaration of London. — The changes in recent years 
in the methods of transportation and of communication 
made necessary the consideration of the advisability of 
requiring a vessel to be brought into port before enemy 
persons could be removed. The early practice of im- 
pressment had created a strong prejudice against re- 
moval of anyone at sea, but the feeling that states could 
be trusted not to abuse the privilege if permitted to 
remove enemy military persons gradually tended toward 
a changed attitude. The manifest disadvantages of a 
rule that would require a large neutral ocean liner to be 
brought to a belligerent port because there was on board, 
or because there was good ground to believe there was 
on board, a belligerent military person became evident. 
In the report of the British delegation to the Interna- 
tional Naval Conference, it was stated in 1909 : 

21. We had, however, to take account of the consideration, set 
forth in paragraph 36 of our instructions, in favor of an arrange- 
ment being made whereby, in certain circumstances, large pas- 
senger steamers under a neutral flag should, if possible, be freed 
from the costly inconvenience of being taken into a prize court 
and there detained, perhaps for a prolonged period, merely because 
a few individuals forming a part of the armed forces of a bel- 
ligerent, but whose military status was unsuspected by the 
owners or captain of the vessel, were among her passengers. 


On a careful review of the question in all its bearings, we came 
to the conclusion, shared by all the other members of the con- 
ference, that, on the whole, the interests of neutrals, and par- 
ticularly of those powers which possess a numerous fleet of ocean 
liners regularly engaged in passenger traffic, would best be served 
by allowing a belligerent to remove from a neutral ship, and make 
prisoners of war, any persons found on board that are actually 
embodied in the armed forces of the enemy. (International 
Naval Conference held in London, December, 1908-February, 1909. 
British Pari. Pap. 1909, Vol. LIV, Misc. No. 4. [Cd. 4554.]) 

The International Naval Conference at London, 1909, 
also gave detailed consideration to the matter of what 
might constitute a military person. In discussion it was 

Sur la question de la definition des " passagers individuels " 
vis6s par l'e 2°, on explique qu'il faut cons.derer comme rentrant 
dans cette categorie des personnes enrdlees dans les cadres de 
1'armee et soumises aux lois et a la discipline militaires, mais 
non des recrues et des reservistes en route pour leur pays pour 
remplir leurs devoirs militaires. Cette definition parait justifiee 
parce qu'il est impossible de regarder des individus qui ne sont 
pas soumis aux lois de la guerre comme faisant deja partie de 
1'armee ennemie et comme susceptibles, en consequence, d'etre faits 
prisonniers de guerre. Si Ton voulait aller plus loin et sou- 
mettre au droit de la contrabande par analogie toutes les personnes 
obligees a faire un service militaire d'apres la loi de leur pays, 
on empecherait presque tout sujet male d'un Etat ou le service 
militaire est obligatoire, de faire des voyages k bord de navires 
neutres, et Ton aurait a'nsi Fair de vouloir legaliser des mesures 
vexatoires contre ces navires, resultat qui ne repondrait assure- 
ment pas aux intentions de la Conference. L'intention de cette 
disposition est, en somme, d'assimiler la solution de cette ques- 
tion a celle que revolt la question analogue dans la guerre sur 
terre, on le belligerent envahissant un terrltoire ennemi n'a pas 
le droit de faire prisonniers les jeunes gens qui pourraient etre 
appeles sous les drapeaux en qualite soit de recrues soit de reserv- 
istes, mais bien les seules personnes qui portent deja les armes." 
(Parliamentary Papers, Misc. No. 5 [1905] Cd. 4555, p. 192.) 

When the report of the committee which had been in- 
trusted with the presenting of rules upon unneutral serv- 
ice was presented to the conference, it contained the fol- 


Des individus incorpores dans les forces armees de terre ou de 
mer d'un belligerant peuvent se trouver a bord d'un navire de 
commerce neutre visite. Si le navire est su jet a confiscation, le 
croiseur le saisira et le conduira dans un de ses ports avec les 
personnes qui se trouvent a bord. Evidemment les militaires ou 
marins de l'Etat ennemi ne seront pas laisses libres, mais seront 
considered comme prisonniers de guerre. II peut arriver que 
Ton ne soit pas dans le cas de saisir le navire — par example, 
paree que le capitaine ne connaissait pas la qualite d'un individu 
qui s'etait presents comme un simple passager. Faut-il alors 
laisser libre le ou les militaires qui sont sur le navire? Cela n'a 
pas paru admissible. Le croiseur belligerant ne peut etre con- 
traint de laisser .libres des ennemis actifs qui sont materiellement 
en son pouvoir et qui sont plus dangereux que tels et tels articles 
de contrebande ; naturellement il doit agir avec une grande dis- 
cretion, et c'est sous sa responsabilite qu'il exige la remise de ces 
individus, mais son droit existe. Aussi a-t-il ete juge necessaire 
de s'expliquer sur ce point. On peut, du reste. consulter ,1' Article 
12 de la Convention du 18 octobre, 1907, sur l'adaptation a la 
guerre maritime des principes de la Convention de Geneve. 
D'apres cet article, " tout vaisseau de guerre d'une partie 
belligerante peut reclamer la remise des blesses, mala des, ou nau- 
frages qui sont a bord de batiments-hopitaux militaires, de 
batiments hospitaliers de societes de secours ou de particuliers, 
de navires de commerce, yachts et embarcations, quelle que soit 
la nationality de ces batiments." Si un navire de guerre bel- 
ligerant peut reclamer & un navire de commerce neutre la remise 
d'un ennemi blesse ou malade, on ne voit pas pourquoi il ne pourr- 
ait reclamer la remise d'un homme valide. II n'est pas inutile 
d'adjouter que tous les Etats representes & la Conference Navale 
ont signe sans reserves la Convention de 1907. (Ibid. p. 321.) 

The rule as finally adopted in article 47 reads — ■ 

Any individual embodied in the armed force of the enemy, and 
who is found on board a neutral merchant vessel, may be made 
a prisoner of war, even though there be no ground for the capture 
of the vessel. (1909, Naval War College, Int. Law Topics, p. 111.) 

Upon this article the general report comments as 
follows : 

Individuals embodied in the armed military or naval forces of 
a belligerent may be on board a neutral merchant vessel which 
is visited and searched. If the vessel is subject to condemnation, 
the cruiser will capture her and take her to one of her own ports 
with the persons on board. Clearly, the soldiers or sailors of the 


enemy state will not be set free, but will be considered as prisoners 
of war. It may happen that the case will not be one for the 
capture of the ship — for instance, because the master does not 
known the status of an individual who had the appearance of 
an ordinary passenger. Must the soldier or soldiers on board the 
vessel be set free? That does not appear admissible. The belliger- 
ent cruiser can not be compelled to set free active enemies who are 
physically in her power and are more dangerous than this or that 
contraband article ; naturally, she must act with great discretion, 
and it is at her own responsibility that she requires the surrender 
of these individuals, but the right to do so is hers; it has thus 
been thought necessary to explain the point. (Ibid.) 

Regulations. — Several states have issued regulations 
which provided for the treatment of enemy persons found 
on neutral vessels. It was common in early regulations 
to attribute to some of these persons something of the 
character of contraband or to class those in the military 
service as contraband. The British Manual of Naval 
Prize Law, prepared by Godfrey Lushington and issued 
in 1866 after the Trent affair, contained the following 
articles : 

190. The following persons on board a neutral vessel, which has 
a hostile destination, are contraband : 

(1) Soldiers or sailors in the service of the enemy. 

(2) Officers, whether military or civil, sent out on public 
service of the enemy at the public expense of the enemy. The 
number of such officers is immaterial. 

195. The commander will not be justified in taking out of a 
vessel any contraband persons he may have found on board, and 
then allowing the vessel to proceed; his duty is to detain the 
vessel and send her in for adjudication, together with the contra- 
band persons on board. 

Prof. T. E. Holland prepared the manual issued in 
1888 which contained a similar provision in regard to 
removal of persons. 

94. The commander will not be justified in taking out of a 
vessel any enemy person he may have found on board, and then 
allowing the vessel to proceed; his duty is to detain the vessel 
and send her in for adjudication, together with the persons on 


The regulations issued by other states during the early 
twentieth century were in accord with the principles 
stated in the British Manual of Naval Prize Law. 

Chinese regulations, 1917: 

44. Hostile persons are liable to capture as prisoners of war. 
Vessels carrying hostile persons and the cargo belonging to the 
owner of the vessel are liable to condemnation, unless proofs are 
given to show that the ship had no knowledge of the passengers 
of enemy character. (1915 Naval War College, Int. Law Docu- 
ments, p. 176.) 

German ordinance, 1909 : 

53. Every person enrolled in the forces of the enemy who is 
found on beard a merchant ship may be made a prisoner of war, 
even when the ship herself is not liable to capture. (Ibid. p. 177.) 

Italian prize regulations, 1915 : * 

8. Persons belonging to or intending to join the enemy's armed 
forces found on board a neutral vessel may be made prisoners of 
war, even though the ship be not subject to capture. (Ibid. p. 

This provision has been continued in Art. 78, p. 36, 
Norme di Diritto Marittimo di Guerra, Roma, 1927. 

Russian regulations, 1916 : 

Par. 3. Anyone, form'ng part of the armed forces of the enemy 
and found on a neutral vessel (merchant) may be taken war pris- 
oner, even if there is no reason for seizing the vessel. (Ibid, p. 

Japanese regulations, 1914: 

Art. 82. Any individual embodied in the armed force of the 
enemy, and who is found on board a neutral merchant vessel, 
may be made a prisoner of war, even though there be no ground 
for the capture of the vessel. 

Art. 83. In the case of the preceding article, the boarding offi- 
cer, by order of the commanding officer of the man-of-war, may 
request the master of the vessel to deliver such individuals. If 
the master refuses to deliver them, the boarding officer shall seize 
such individuals and, if the crew of the vessel resist, shall capture 
the vessel. 

Art. 84. In the case of the preceding article, the boarding officer 
shall prepare a document in duplicate regarding the delivery 


according to Form No. 7 and shall give one copy to the master of 
the vessel. 

Art. 85. In case the master of the vessel objects to the delivery 
of individuals specified in article 82, the commanding officer of 
the man-of-war shall immediately report to the Minister of the 
Navy the gist of the objection and the measures he has taken. 
(Ibid. p. 177.) 

The German Prize Code, 1915, provided — 

49. Reservists, recruits, and volunteers on the way to their 
place of muster are not to be regarded as " persons embodied in 
the armed forces of the enemy." 

The Instructions for the Navy of the United States y 
June, 19 IT, were : 

89. As to treatment of vessels outside of neutral jurisdiction 
and carrying persons embodied in the military service of the 
enemy* * * *. 

90. The persons referred to in paragraph 89 must be actually 
embodied in the military service of the enemy. Reservists or 
other persons subject to military duty but not formally incorpo- 
rated in military service are not included. 

French interpretation. — The French Prize Court in 
1916, considering that the decree of August 25, 1914, had 
made the Declaration of London of February 26, 1909, 
effective except for certain modifications particularly re- 
lating to contraband, gave a somewhat extended interpre- 
tation to article 45. The fact that the passengers, might 
from their age be incorporated into the forces of the 
enemy was regarded as sufficient ground to declare the 
vessel specially carrying them as good prize. 

Consid£rant que, aux termes de l'article 45 de la Declaration 
de Londres, un navire neutre est confisque lorsqu'il voyage spe- 
cialement en vue du transport de passagers individuels incorpores 
dans la force armee ennemie ; 

Considerant qu'il resulte de l'instruction que le vapeur Federico 
n'est pas un paquebot faisant regulierement le transport des voy- 
ageurs ; que, lorsqu'il a ete capture en mer, il voyageait speciale- 
ment en vue du transport, de Barcelone a G£nes, de nombreux 
passagers allemands et austro-hongrois, dont la grande majorite 
appartenaient par leur age aux classes mobilisees par leurs gouv- 
ernements respectif s et voyageaient pour repondre a cet appci ; 
que, dans ces circonstances, ces passagers devaient §tre regardes 


comine incorpores au sens de l'article 45 precite, et qu'ainsi la 
navire etait, aux termes dudit article, passible de confiscation. 

Decide' : 

La prise du vapeur espagnol Federico, y comprise les agres, 
apparaux et accessoires, est declare bonne et valable pour la 
valeur nette en etre adjugee aux ayants droit, conformement aux 
lois et reglements en vigueur. (1 Decisions du Conseil des Prises, 
1916, p. 162.) 

French Regulations, 1916. — 59. Alors meme qu'il n'y aurait pas 
lieu de capturer le navire, vous pourrez faire prisonniers de 
guerre tous individus en route vers les pays ennemis pour y 
prendre les armes. * * * (Instructions sur l'Application du 
Droit International en Cas de Guerre, Paris, 1916. Furnished on 
request to French Navy Department in 1928 for latest inter- 
national law instructions.) 

Early World War practice. — The taking of persons of 
belligerent nationality from neutral vessels early in the 
World War became a matter of difference of opinion. 

The American Ambassador in Berlin in a dispatch of 
August 28, 1914, informs the Department of State that 
the German Foreign Office had made known to him that 
England and France were not observing the Declaration 
of London. (For. Eel., U. S., 1914, Sup. 221.) 

3. The British and French naval forces are taking away Ger- 
mans of military age, but not embodied in the German armed 
•forces, as prisoners of war from neutral sh'ps, in contravention 
of the principles laid down in article 45, No. 2, and article 47 
of the Declaration of London. Thus the British naval forces 
have taken away Germans liable to military duty from the Dutch 
ships Tubantia at Plymouth and Potsdam at Falmouth, from 
the Italian ships Revittorio and Ancona at G braltar, and from 
the Norwegian steamer 'Norwega in Bergen. French naval forces 
have taken like measures against the Spanish steamer Sister at 
Marseilles. In all these cases the hostile armed forces have acted 
contrary to the provisions of the Declaration of London ; for, 
as the general report of the editing committee expressly states in 
the first paragraph of the remarks to article 45, the whole con- 
ference was agreed for juridical as well as practical reasons that 
solely active military persons are liable to capture at sea, and 
not persons returning to their native country in order to fulfill 
their general military duty. 

In view of this state of affairs the German Government has a 
very considerable interest in learning without delay whether 
Great Britain, France, and Russia are going to consider them- 


selves bound by the provisions of the Declaration of London. 
Should this be the case the British Government would have to 
give back immediately the German goods seized on neutral ships, 
and the British and French Governments would have to set at 
liberty the Germans arrested on neutral ships. In the contrary 
case the German Government would have to reserve the right to 
disregard in the future for its part also provisions of the Decla- 
ration of London not in harmony with Germany's military inter- 
ests. It would accordingly be gratified if the Government of the 
United States would cause the other belligerents to declare their 
attitude toward the Declaration of London immediately. 

In addition the German Government would be interested in 
learning what position the American Government now takes with 
regard to the Declaration of London, in particular whether it 
proposes to acquiesce in violations of its provisions by the naval 
forces of Great Britain, France, or Russia. (Ibid. p. 225.) 

The practice as to permitting reservists to pass through 
the territory of the United States was particularly a 
matter of concern to Great Britain and France and there 
was considerable correspondence between various govern- 
ments relating to this subject beginning as early as Au- 
gust 12, 1914. The circular note from the Acting Secre- 
tary of State was sent to the diplomatic representatives 
of the belligerent States. 

Depaetment of State, 
Washington, October 3, 1911^. 

Exceulency: A number of requests in specific cases have been 
made of the department for permission for nationals of belligerent 
countries to come to the United States from Canada for the pur- 
pose of embarking to the countries of which they are citizens 
or subjects. The requests were granted, as neither the neutrality 
laws of the United States nor the proclamation of the President 
prohibit passage through the United States of reservists who are 
returning to their respective countries for the purpose of engaging 
in military service: Provided, Their transit does not amount to 
the beginning or setting on foot, or providing or preparing the 
means for, any military expedition or enterprise to be carried on 
from the territory or jurisdiction of the United States. 

The Department of State and the Department of Labor, after 
consideration of the subject, have reached the conclusion that em- 
barrassment and criticism would be obviated by the issuance of 
general instructions to the United States immigration officials to 
permit the transit of reservists of belligerent nationalities who 


desire to take ship for their countries at ports in the United States, 
rather than to require each case to be presented separately through 
diplomatic channels. But, as this course will involve further re- 
laxation of the administration of the immigration laws of the 
United States, its adoption will depend on the willingness of each 
of the Governments concerned to give to the Government of the 
United States an assurance that its male citizens or subjects of 
military age whenever permitted to enter the United States during 
the present war will not be allowed to become public charges in 
this country. 

I shall be glad to receive from you such an assurance on the part 
of your Government. 

Robert Lansing. 

(Ibid. p. 567.) 

To this note the British and French Ambassadors re- 
plied that their Governments would take measures that 
persons in transit should not become a public charge. 
The Austrian, Hungarian, and German Ambassadors 
found it impracticable to take advantage of the American 
Government's offer as their enemies were taking " persons 
liable to military service off neutral vessels." 

British notice, 1914- — On November 3, 1914, a British 
Foreign Office Notice was published in the London 
Gazette as follows : 

In view of the action taken by the German forces in Belgium 
and France of removing, as prisoners of war, all persons who are 
liable to military service, His Majesty's Government have given 
instructions that all enemy reservists on board neutral vessels 
should be made prisoners of war. 

Foreign Office, 

Xovember 1, 1914. (London Gazette, November 3, 1914.) 

This was later referred to as action based on reprisal. 
It should, however, be made clear that the action of Ger- 
many was with reference to an area under German mili- 
tary authority. To assume that such an action was a 
justifiable ground for taking persons of corresponding 
capacity from under neutral jurisdiction could with 
difficulty be maintained and as in the case of the China 
was not maintained. 

44003—29 7 


Piepenbrink case, 191Jf. — There was a considerable 
correspondence in regard to a German who had declared 
his intention to become an American citizen and who was 
employed upon a vessel registered under the American 
flag. Various questions were discussed in course of the 
diplomatic correspondence between the Government of 
the United States and the Governments of France and 
Great Britain. 

The Secretary of State to Vice Consul Bundy 1 

Department of State, 
Washington, December 1, 1914- 
It appears from information received by department tliat 
Piepenbrink, waiter or steward on Windber, was taken from that 
American vessel while on the high seas by officers of French 
cruiser. His arrest and detention are deemed to be without 
right and you will ask British authorities who now detain him 
for his release. 

(9 Amer. Jour. Int. Law, Supplement, p. 353.) 

The Secretary of State to Ambassador Sharp 2 

Department op State, 
Washington, December 7, 1914. 

August Piepenbrink, waiter or steward on American registered 
steamer Windber bound to New York, was taken from that vessel 
by officers of French cruiser Conde, about November 13, while on 
the high seas some two days out of Colon and 250 miles South 
of Kingston. Piepenbrink is of German birth, but had regularly 
riled declaration of intention to become American citizen at Sacra- 
mento, Calif., in 1910. He is now detained prisoner at Kingston, 
Jamaica, in charge of British officials. Action of French cruiser 
in seizing Piepenbrink is deemed to have been without right, as 
also his arrest and detention' by British authorities. You will 
ask French Government for orders for his release. 


(Ibid. p. 353.) 

1 Vice and deputy consul at Kingston, Jamaica. 

2 Similar instruction to embassy at London. 


Ambassador W. II. Page to the Secretary of State 


American Embassy, 
London, January If, 1015. 
Your 705, December 7. 

British Government answers that although August Piepenbrink 
has declared intention of becoming American citizen he appears 
from a legal standpoint to be still a German subject if he has not 
actually taken out letters of naturalization and that in these cir- 
cumstances it is not possible for him to be released. 

(Ibid. p. 354.) 

The Secretary of State to Ambassador W. II. Page 

Department of State, 
Washington, March 2, 1915. 
Your 1395, January 4, concerning detention of Piepenbrink. It 
is understood that the only reason ass gned by British Government 
for his detention is that, although he has declared his intention 
to become an American citizen, he has not actually taken out 
letters of naturalization and appears from a legal standpoint to 
be a German subject. In reply to this and supplementing the 
grounds upon which this Government objects to his detention as 
set forth in Department's No. 705, December 7, inform British 
Government that since he declared his intention of becoming 
American citizen in 1910, Piepenbrink has been employed in the 
American Merchant Marine, and call attention to section 2174, 
United States Revised Statutes, which provides that every foreign 
seaman employed on board American merchant vessels having 
declared intention of becoming a citizen " shall, for all purposes 
of protection as an American citizen, be deemed such, after the 
filing of his declaration of intention to become such citizen." Also 
point out that independently of any question of Piepenbrink's 
American citizenship, this Government insists that his removal 
from an American vessel on the h'gh seas was without legal justi- 
fication. The facts show that Piepenbrink was not embodied " in 
the armed forces of the enemy," in the sense of the rule on that 
subject in the Declaration of London, and apart from the Declara- 
tion of London, which this Government does not recognize as in 
force, there is not justification in internat onal law for the re- 
moval of an enemy subject from a neutral vessel on the high seas 
bound to a neutral port, even if he could properly be regarded 


as a military person. The rule was stated for Great Britain by 
Earl Russell in the Trent case (Moore's Digest VII, 772) as fol- 
lows : 

"If the real terminus of the voyage be bona fide in a neutral 
territory, no English, nor, indeed, as Her Majesty's Government 
believe, any American authority can be found which has ever 
given countenance to the doctrine that either men or dispatches 
can be subject, during such a voyage, and on board such a neutral 
vessel, to belligerent capture as contraband of war." 

For these reasons, which you will urge upon the attention of 
the British Government, you are instructed to again request that 
orders be issued for Piepenbrink's immediate release. 


(Ibid. p. 354.) 

The Secretary of State to Ambassador Sharp 

Department of State, 

Washington, March 2, 1915. 
Your 484, January 22. Inform Foreign Office that this Govern- 
ment regards the seizure of Piepenbrink by the French Govern- 
ment and his detention by the British Government as unjustifiable, 
and has to-day addressed a communication on this subject to the 
British Government requesting his immediate release and setting 
forth the grounds of objection to his detention, which apply 
equally to his seizure, the responsibility for which rests with the 
French Government. A copy of this communication is appended 
for the information of the Foreign Office, and its attention should 
also be called to the rule stated by the French Minister of Foreign 
Affairs in a note dated December 3, 1861, to the French Minister 
at Washington, in regard to the Trent case, as follows : 


" The destination of the Trent was not a point belonging to one 
of the belligerents. She was carrying her cargo and her passen- 
gers to a neutral country, and, moreover, she had taken them on 
in a neutral port. If it were admissible that under such condi- 
tions the neutral flag did not completely cover the persons and 
merchandise which it was transporting, its immunity would not 
longer be anything but an empty word ; at any time the commerce 
and navigation of third powers would have to suffer from their 
harmless or even indirect relations with one or the other of the 


belligerents ; the latter would no longer be entitled merely to re- 
quire entire impartiality of a neutral and to forbid him from in- 
terfering in any way in the hostilities, but they would place upon 
his freedom of commerce and navigation restrictions the lawful- 
ness of which modern international law has refused to admit. 
(Oalvo, Fifth Edition, V, pp. 94-85.)" 

The seizure of Piepenbrink by the French Government was 
clearly contrary to the rule thus announced by that Government. 

The communication to be presented to the British Government 
is as follows : * * * 

[Inserted here is the complete note to Ambassador Page, dated 
Mar. 2, 1915, above.] (Ibid. p. 355.) 

Ambassador Sharp to the Secretary of State 

No. 298.] American Embassy, 

Paris, March 12, 1915. 

Sir : In acknowledging the receipt of the department's tele- 
graphic instruction No. 600 of the third instant, relative to the 
seizure on board the American steamer Windber of August 
Piepenbrink, I have the honor to inclose herewith the copy of a 
note which I handed to Mr. Delcasse, the French Minister for 
Foreign Affairs, on March 5, in conformity therewith. 

At the same time, I stated to Mr. Delcasse that the American 
Ambassador at London had been instructed to make representa- 
tions to the British Government, requesting the immediate release 
of Piepenbrink. 

The minister replied that he would give the matter his urgent 
and early attention, examining the question in the most friendly 

I have, etc. Wm. G. Sharp. 

(Ibid. p. 357.) 

Ambassador Sharp to the French Minister for Foreign Affairs 

American Embassy, 
Paris, March 5, 1915. 
Excellency : Acting on instructions from my Government, I had 
the honor to address a note to Your Excellency on December 11, 
1914, regarding the seizure by the French cruiser Gonde of August 
Piepenbrink, a steward on board the American steamer Windber 
bound from Colon to New York. My Government considering the 


removal of this seaman from an American vessel as without right, 
I was directed to request that orders be given for his release. 

On January 14 Your Excellency rep,lied that at the time of his 
arrest Piepenbrink, having raised no protest nor presented any 
certificate testifying to his intention of becoming naturalized as 
an American, had been placed under the custody of the governor 
of Kingston and that it lay within the province of that official 
to decide the question of his liberation. 

My Government, to whom this response was duly transmitted, 
again instructs me to inform Your Excellency that it regards 
the seizure of Piepenbrink by the French Government and his 
detention by the British Government as unjustified. A communi- 
cation to this effect has been addressed to the British Govern- 
ment, requesting his immediate release and setting forth the 
grounds on which the United States objects to his detention. 
This objection applies equally to his seizure, the responsibility 
for which rests with the French Government. 

For the information of Your Excellency, I am instructed to 
inform you that the communication to the British Government is 
in substance as follows: [This portion is left out because it is 
substantially the same as the note dated at Washington, Mar. 2, 
1915. These brackets are mine.] 

In communicating to Your Excellency the foregoing substance 
of the communication to be made to the British Government 
Your Excellency's attention is especially invited to the rule laid 
down by one of your distinguished predecessors in a note dated 
December 3, 1861, addressed to the French Minister at Washing- 
ton, in which he expressed himself as follows : 

[Here follows the quotation from Galvo. Fifth edition, V pp. 
94, 95 as given" in the note to Ambassador Sharp of Mar. 2, 1915, 

Ambassador W. II. Page to the Secretary of State 

No. 1166.] American Embassy. 

London, April 6, It) 15. 

Sir : With reference to your telegram No. 1209 of March 2 last, 
relative to the detention of August Piepenbrink, I have the honor 
to inclose herewith a copy of a note I have just received from 
the Foreign Office, stating that the British and French Govern- 
ments have decided to liberate^this man as a friendly act, while 
reserving the question of principle involved, upon which my tele 
gram No. 1879 of to-day was based. 

I have, etc., 

Walter Hines Paoe. 

(Ibid. p. 359.) 

THE " CHINA " CASE, 1916 97 


The Secretary of State for Foreign Affairs to Ambassador W. H. 


Foreign Office, 

April 3, 1915. 
Your Excellency: With reference to Your Excellency's note of 
the 4th instant, relative to the detention of August Piepenbrink, 
a German subject who was taken prisoner by the French cruiser 
Conde out of the United States Steamship Windber and is at 
present detained at Kingston, Jamaica, I have the honor to in- 
form Your Excellency that His Majesty's Government, in common 
with the French Government, have decided to liberate this man 
as a friendly act, while reserving the question of principle in- 

I have, etc., 

For the Secretary of State, 
A. Law. 
(Ibid. p. 359.) 

The " China " case, 1918. — Another case which gave rise 
to extended correspondence arose in consequence of the 
taking of certain persons from the American steamship 
China in 1916. The attitude of the governments is shown 
in the diplomatic exchanges though the persons taken 
from the China were released by Great Britain^ 

The Secretary of State to Ambassador W. H. Page 
[Telegram — Paraphrase ] 

Department of State, 
Washington, February 23, 1916. 
Mr. Lansing informs Mr. Page that the department is advised 
by American consuls in Hong Kong, Nagasaki, and Shanghai, and 
by the owners of the American steamship China, that on the 
18th instant the British cruiser Laurentic stopped the China 
on the high seas, about 10 miles from the entrance to the Yangtze- 
kiang, boarded her with an armed party, and despite the captain's 
protest, removed from the vessel 28 Germans, 8 Austrians, and 
2 Turks, including physicians and merchants, and took them to 
Hong Kong, where they are detained as prisoners in the military 
barracks. As it is understood that none of the men taken from 
the China were incorporated in the armed forces of the enemies 
of Great Britain, the action of the Laurentic must be regarded by 
this Government as an unwarranted invasion of the sovereignty of 


American vessels on the high seas. After the notice given to the 
British Government of this Government's attitude in the Piepen- 
brink case in March, last, which was based upon the principle 
contended for by Earl Russell in the Trent case, this Government 
is surprised at this exercise of belligerent power on the high seas 
far removed from the zone of hostile operations. Ambassador Page 
is directed to present this matter to the Government of Great 
Britain at once and to insist vigorously that if facts are as report- 
ed, orders be given for the immediate release of the persons taken 
from the China. (10 Amer. Jour. Int. Law, Supplement, p. 427.) 

Ambassador W. H. Page to the Secretary of State 

No. 3259.] American Embassy, 

London, March 17, 1916. 

Sir: With reference to the department's telegram No. 2924, of 
February 23, 1916, protesting against the removal of 38 enemy 
subjects of Great Britain by the British ship Laurent ic from the 
steamship China on the high seas off the entrance to the Yangtse 
River, I have the honor to inclose herewith a copy of a note, dated 
the 16th instant, from the Foreign Office in reply to the representa- 
tations I made to Sir Edward Grey in the premises. 

I have, etc., 

Walter Hines Page. 


The British Secretary of State for Foreign Affairs to Ambassador 

W. H. Page 

Foreign Office, 

March 16, 1916. 

Your Excellency : His Majesty's Government have given the 
most careful consideration to the memorandum which Your Ex- 
cellency was good enough to communicate to me on the 24th 
ultimo, conveying a protest from the United States Government 
against the removal of 38 enemy subjects by His Majesty's ship 
Laurentic from the steamship China on the high seas off the en- 
trance to the Yangtze River, and I now have the honor to offer 
the following observations as an expression of the views of His 
Majesty's Government in regard to the matter : 

The latest attempt to define by common agreement the limits 
within which a belligerent naval power may remove enemy per- 
sons from neutral ships on the high seas is represented by article 
47 of the Declaration of London, 1909. This article permitted the 

THE U CHINA " CASE, 1916 99 

arrest of such persons if " embodied in the armed forces of the 
enemy," without regard to the destination of the ship on which 
they were found traveling. The commentary on article 45 of the 
declaration contained in the report of the drafting committee 
of the London naval conference states that on practical, not 
legal, grounds it was agreed that the term " embodied in the 
armed forces of the enemy " should be considered as not includ- 
ing reservists not yet attached to their military units. 

At the beginning of the war His Majesty's Government adhered 
to articles 45 and 47 of the Declaration of London, as inter- 
preted by the report of the drafting committee. They took this 
step as a matter of convenience, being at liberty, as the declara- 
tion was an unratified instrument, to cancel at any time their 
adherence, provided always that their subsequent action did not 
conflict with the general principles of international law. When 
the German authorities began to remove able-bodied persons of 
military age from the occupied portions of France and Belgium, 
His Majesty's Government, as indicated in the circular note which 
I had the honor to address on November 4, 1914, to the represen- 
tatives of neutral powers in London, felt that they could no longer 
accept the restrictive interpretation placed for practical reasons 
on the terms of article 47 of the Declaration of London by the 
report of the drafting committee, and that they must arrest all 
enemy reservists found on board neutral ships on the high seas, 
no matter where they might be met. 

I am aware that the United States Government, .after their 
suggestion early in the war that the belligerent powers should 
adopt the Declaration of London in its entirety as a code of 
international naval law, did not find general acceptance, have 
declared that they no longer consider the declaration as being in 
force. I have referred at some .length to the bearings of the 
declaration on the position of His Majesty's Government in this 
question, because article 47 represents the latest, if not the only, 
attempt to arrive at a definition, by common consent of the chief 
maritime nations of the law in regard to the matter. The attempt 
was necessarily conditioned by the experience of previous wars, 
and the definition was reached after weighing the claims and the 
convenience of neutral shipping against the importance to bel- 
ligerent powers, as shown by the experience of previous wars, of 
preventing enemy subjects from proceeding to their destination 
and pursuing the hostile purposes for which they were organized. 

It is evident, however, from the foregoing observations that the 
principle (often contended for in the past by certain continental 
nations) that there are certain classes of persons who are not 
protected by a neutral flag on the high seas and may therefore 


without any invasion of the sovereign rights of the neutral be 
removed from a neutral ship is now generally admitted. The 
carriage of such persons may in some cases amount to unneutral 
service, rendering the ship liable to condemnation ; but even when 
this is not so, the removal of such persons from a neutral ship by 
a belligerent does not justify any complaint by the neutral state 
concerned. The question in the present case, is therefore, whether 
the character and position of the persons removed from the China 
were such as to bring the case within the principle enunciated 

The present war has shown that the belligerent activity of the 
enemies of this country is by no means confined to the actual 
theaters of military and naval operations and that there is no 
limit to the methods by which Germany in particular seeks to 
secure a victory for her arms. The hostile efforts of the enemy 
have shown, and continue to show, themselves on neutral soil in 
many parts of the world in political intrigues, revolutionary plots, 
schemes for attacking the sea-borne trade of this country and 
her allies, endeavors to facilitate the operations of ships engaged 
in this task, and in criminal enterprises of different kinds directed 
against the property of neutrals and belligerents alike. War 
has in effect been extended far beyond the bounds of the area 
ill which opposing armies maneuver, and an unscrupulous belliger- 
ent may inflict the deadliest blows on his enemy in regions re- 
mote from actual fighting. It may be recalled that a certain 
Lieut. Robert Fay, of the German Army, was reported in the 
press last autumn to have been detected experimenting with 
bombs designed to destroy merchant ships .leaving America and 
operating in the interests of the enemies of Germany. He was 
said to have admitted that he was sent by the German authori- 
ties to the United States expressly for this purpose. His 
Majesty's Government are not aware what degree of truth there 
may be in this story, but numerous incidents in America and 
elsewhere have shown that the facts may be as stated and may 
be typical. 

It is then evidently of the greatest importance for a belligerent 
power to intercept on the high seas not only mobilized members 
of the opposing army who may be found traveling on neutral 
ships, but also those agents whom the enemy sends to injure his 
opponent abroad or whose services he enjoys without having him- 
self commissioned them. Practical considerations from the bel- 
ligerents' point of view have changed, and the change necessarily 
implies a modification in the precise description of enemy subjects 
whom it is lawful to arrest, supposing such a precise description 
can be said to have existed in any binding form. 

THE " CHINA " CASE, 1916 101 

I may add that the action of the United States Government 
in forwarding requests for safe conducts for agents of states at 
war with this country whose actions had been such that their con- 
tinued presence in the United States could no longer be tolerated 
affords a strong indication that the right to remove certain classes 
of persons from neutral ships can, in the circumstances of this 
present war, not be confined to persons embodied in the armed 
forces of a belligerent. 

I may add for the confidential information of the Government 
of the United States that from actual occurrences and from re- 
liable information received it has been definitely established that 
the Germans resident in Shanghai have been engaged for some 
time past in the collection of arms and ammunition, both 
for clandestine transmission to India and, if possible, for the 
arming of a ship to play the part of a Far Eastern Moewe. His 
Majesty's Government were able to cope with this activity to a 
considerable extent and obtained the arrest of various German 
agents caught in the act of attempting to smuggle arms out of 
Shanghai ; further, the Germans became aware that His Majesty's 
Government knew of their plots. The commander in chief, China 
station, received information that owing to this fact the Ger- 
mans were planning to shift the center of their activity from 
Shanghai to Manila. Subsequently he was definitely informed 
that 35 Germans had planned to leave Shanghai in the steam- 
ship CMna and proceed to Manila. 

His Majesty's ships were sent to patrol off the mouth of the 
Yangtze with the view of intercepting this party. The date of 
the China's departure was more than once postponed, but she 
eventually sailed, was intercepted by His Majesty's ship Laurentic 
and found to have on board Germans and Austrians correspond- 
ing to those concerning whom information as mentioned above 
had been received. The Laurentic therefore had no hesitation in 
removing them. The next ostensible port of call of the China 
was Nagasaki, a convenient place at which to transfer to an- 
other vessel proceeding to Manila. 

It may be added that subsequent information fully confirms 
that the movement of the body of Germans in question was an 
integral part of the plot referred to above. 

I do not think it will be disputed that persons of this descrip- 
tion must be placed within the category of individuals who may, 
without any infraction of the sovereignty of a neutral State be 
removed from a neutral vessel on the high seas. The object of 
their journey was to find another neutral asylum in which they 
might cont nue their operations against the interests of this 
country- The acts which they desire to perform upon the soil of 


the United States were such as possibly to compromise the neu- 
trality of that country or to constitute an offense against its 
criminal laws. They were in effect persons whose past actions 
and future intentions deprived them of any protect .on from the 
neutral flag under which they were sailing. 

In Your Excellency's note reference is made to the case of the 
Trent. I venture to hope that the preceding observations show 
clearly that the present case is of an entirely different nature 
to that on which the United States Government rely. At the 
date when the Trent case occurred no agreement had been 
reached as to the claim put forward by certain countries that 
a belligerent is entitled to remove certain classes of individuals 
from a neutral ship without bringing the vessel in for adjudica- 
tion in the prize court ; since then, as I have pointed out above, 
a considerable measure of agreement had been reached on this 
point. In any case the nature of the persons concerned in the 
episode of the Trent was entirely different from that of the in- 
dviduals removed from the China. Messrs. Slidell and Mason 
were proceeding to Europe, according to their contention, as the 
diplomatic representatives of a belligerent ; at that time the 
suggestion that the functions of a diplomatic representative 
should include the organizing of outrages upon the soil of the 
neutral country to which he was accredited was unheard of, and 
the removal of the gentlemen in question could only be justified 
on the ground that their representative character was sufficient 
to bring them within the classes of persons whose removal from 
a neutral vessel was justifiable. The distinction between such 
persons and German agents whose object is to make use of the 
shelter of a neutral country in order to foment risings in British 
territory, to fit out ships for the purpose of preying on British 
commerce, and to organize outrages in the neutral country itself 
is obvious. 

It is hardly necessary for me to state that it is far from the 
wish and intention of His Majesty's Government to take any 
action involving an invasion of the soveregn rights of the 
United States Government; the above observations will have 
made it clear that in the view of my Government no such invasion 
was involved in the action of His Majesty's ship Laurentic, and 
I feel confident that after the foregoing explanations in regard 
both to the general question 'involved and to the removal of 
enemy subjects from the China the United States Government 
will not feel disposed further to contend that this action was 
not justified. 

I have, etc., 

E. Grey. 

(Ibid. p. 432.) 



Instructions for the Navy of the United States, 1917. — 
The instructions for the Navy of the United States gov- 
erning maritime warfare, June, 1917, in article 36 follow- 
ing article 5 of the unratified Declaration of London 
provide : 

A neutral vessel is guilty of indirect unneutral service and may 
be sent in for adjudication as a neutral vessel liable to condem- 
nation — 

(a) If she specially undertakes to transport individual passen- 
gers who are embodied in the armed forces of the enemy and who 
are en route for military service of the enemy or to a hostile 
destination, or transmits intelligence in the interest of the enemy 
whether by radio or otherwise. 

(&) If, to the knowledge of the owner, or the charterer, or of the 
agents thereof, or of the master, she is transporting a military de- 
tachment of the enemy, or one or more persons who are embodied 
in the military or naval service of the enemy and who are en 
route for military service of the enemy or to a hostile destination,. 
or one or more persons who, during the voyage, lend direct assist- 
ance to the enemy, or is transmitting informat on in the interest of 
the enemy by radio or otherwise. 

In the comment upon article 45 in the general report 
of the London Naval Conference, 1909, it is stated : 

The first case supposes passengers traveling as individuals ;. 
the case of a military detachment is considered afterwards. It 
relates to individuals embodied in the armed military or naval 
forces of the enemy. There was some doubt as to the meaning 
of the embodiment which is specified. Does it include those indi- 
viduals only who, summoned to serve in virtue of the law of their 
country, have really joined the corps to which they are to belong? 
Or does it also include such individuals from the time when they 
are summoned, and before they have jo ned their corps? The 
question is of great practical importance. There may be individ- 
uals natives of a country of continental Europe and settled in 
America ; these individuals have military obligations toward their 
native country ; they have, for instance, to belong to the reserve 
of the active army of that country. Their country being at war, 
they sail to perform their service. Shall they be regarded as 
embodied in the sense of the provision which we are considering? 
If the municipal law of certain countries is followed, an affirma- 
tive reply would be rendered. But, apart from purely juridical 
reasons, the contrary opinion has seemed more in accordance with 


practical necessity and lias been accepted by all in a spirit of 
conciliation. It would be difficult, or perhaps even impossible, 
without vexatious measures which neutral governments would 
not tolerate, to distinguish among the passengers in a vessel 
those who are bound to perform m'.litary service and are on their 
way to render it. (1909 Naval War College, Int. Law Topics, p 

Case of the " Svithiod? 1920.— On March 28, 1917, the 
Swedish bark Svithiod sailed from Buenos Aires with 
a cargo of maize consigned to Denmark. The Svithiod 
called at Pernambuco for orders and while there " the 
master bought and took on board for his own account two 
bags of rubber, which he did not enter on the manifest, 
but on the stores list, and where with his connivance a 
German named Hellman, the third mate of the German 
merchant ship Blucher, then lying interned at Per- 
nambuco, hid himself in the hold with the object of get- 
ting to Europe. The Svithiod was directed to proceed to 
Halifax for further orders. She arrived there on July 
12, and a search was made in the course of which Hellman 
and the rubber were discovered." (The Svithiod, 
[1920] A. C. T18.) 

The Nova Scotia Admiralty Division of the Exchequer 
Court of Canada condemned the vessel on the ground of 
unneutral service in carrying Hellman and the judge 
said : 

The rubber seized was contraband and carried withoot authority 
and will be condemned. For carrying the contraband rubber alone 
I would not have confiscated the ship, but, considering both cir- 
cumstances, the ship will be forfeited and the rubber confiscated. 
(10 Lloyd's Prize Cases, p. 1.) 

The case was appealed to the judicial committee of the 
privy council. Lord Sumner for the judicial committee 
said : 

What this man was, except that he was a mariner and a quali- 
fied third officer, the evidence does not show ; and even assum- 
ing, as probably one may assume, because our eyes can not be 
closed to circumstances of public notoriety connected the 
war, that, if he reached Germany, some service in connection 

THE SVITHIOD " CASE, 1920 105 

with the war would promptly have been found for him, the fact 
remains that he was at the time a seaman in an entirely private 
capacity, seeking the opportunity of a voyage by which he would 
at least escape from a further stay at Pernambuco, and proceed- 
ing at his own expense, or at the expense of the owners of th's 
Swedish bark, it does not appear which, but without their cog- 
nizance at any rate. His case, therefore, can n$>t be placed in 
the same category at all as the cases where the officers of a 
belligerent state have engaged a vessel to perform a particular 
service, or have paid for the carriage of particular passengers, 
or where persons, already embodied in the service of the bellig- 
erent country, are being transported upon some purpose of State. 

Their lordships are, of course, very fully impressed with the 
great importance of the whole topic of unneutral service, particu- 
larly in view of the fact that the change in the circumstances 
under which maritime warfare is now carried on is so great 
since most of the cases relied upon were dec' ded. On some 
proper occasion it might be necessary to define with very great 
accuracy the way in which well-known principles should be ap- 
plied under modern conditions ; but it is precisely because their 
lordships are so impressed with the Importance of the subject, 
with the high obligations which rest upon neutrals to refrain 
from all unneutral service, and with the gravity of that breach 
of duty if it should occur, that they think it unnecessary, and 
therefore inexpedient and undesirable to endeavor to decide any 
question of law in a case where, in their view, the captors have 
failed to lay any foundation in fact which would justify the in- 
vestigation of so important a subject. 

Their lordships will, therefore, humbly advise His Majesty 
that the appeal succeeds ; that the decree of confiscation ought 
to be set aside, and that the confiscated vessel ought to be re- 
stored to her owners. The respondent will pay the costs of the 
appeal. (Ibid.) 

Proposed Rules of Aerial Warfare, 1923. Persons on neutral air- 
craft. — Art. 37." Members of the crew of a neutral aircraft which 
has been detained by a belligerent shall be released unconditionally, 
if they are neutral nationals and not in the service of the enemy, 
If they are enemy nationals or in the service of the enemy, they 
may be made prisoners of war. 

Passengers are entitled to be released unless they are in the 
service of the enemy or are enemy nationals fit for military service, 
in which cases they may be made prisoners of war. * * * 
(Commission of Jurists to Consider and Report upon the Re- 
vision of the Rules of Warfare, Part II, Aerial Warfare, The 
Hague, 1923.) 


Resume. — While there has been a tendency to extend 
the scope of unneutral service, it is evident from practice, 
instructions, decisions, etc., that the principles of the 
Declaration of London of 1909 were generally accepted 
at the beginning of the World War in 1914. Where ex- 
treme action «was taken during the World War on the 
ground of reprisals such action followed no precedent 
based on general practice. The transportation of non- 
combatant persons, who may be noxious or who may by 
some new relationship into which they may subsequently 
enter become liable to treatment as combatants, does not. 
involve the vessel carrying such persons in unneutral 
service or make such persons subject to capture while 
en route. It is now generally admitted, however, that 
a belligerent should be permitted to remove enemy 
combatants from a neutral vessel and that it should 
not be longer necessary to bring such a vessel to port to 
render such action lawful. If the early method of 
maintaining neutral rights should be insisted upon, a 
great ocean liner might with thousands of innocent pas- 
sengers be diverted far from its course in order that a 
single enemy soldier might be removed. The Declara- 
tion of London, 1909, provided for the removal from 
neutral vessels of persons embodied in the armed force 
of the enemy, and regulations issued subsequent to 1909 
generally permitted such removal and sometimes pre- 
scribed in detail for the removal. These regulations 
were similar to some of the treaties in effect in the early 
nineteenth century. 

According to the general report of the Declaration of 
London only persons " embodied in the armed forces " 
were liable to be removed, but the national law of a State 
rather than international Jaw might determine who 
should be regarded as " embodied." The German Prize 
Code of 1915 as well as the instructions of the United 
States Navy of 1917 exempted reservists unless incorpo- 
rated in the military forces. Perhaps this restriction may 


give too much exemption to persons of belligerent nation- 
ality on board neutral vessels as has been sometimes argued, 
but a belligerent may when neutral territory is used as a 
base for hostile expeditions protest to the neutral against 
this use. The neutral is naturally reluctant to permit 
the belligerent to exercise authority within neutral juris- 
diction, as would be necessary in the case of taking per- 
sons from a neutral vessel and, accordingly, the exercise 
of such authority has been strictly limited. Otherwise 
interference would be unduly extended if the determina- 
tion of the liability of the person rested upon the will of 
the belligerent. 

Nations that have treaties defining the persons that 
may be removed from neutral ships will follow such 
treaties. It may be remarked, as has been seen in the 
quotation from Wheaton (Dana), 1866, hereinbefore 
cited, that the provisions of these treaties originated more 
than two centuries ago, before the days of the nation in 
arms and universal military service, and before there were 
any reservists as now understood. 

Also nations that have regulations on the subject will 
follow their own regulations, but these regulations are not 
necessarily based' on international law. The accepted 
law at the outbreak of the World War was, as is shown 
herein, in agreement with the Declaration of London. 
The nations that have revised their regulations, during 
or since the World War, so far as such revisions are now 
available, as in the case of the Italians and French here- 
tofore cited, authorize the removal of enemy reservists in 
transit to the enemy's country. The unratified report of 
the Commission of Jurists, The Hague, 1923, also as has 
been seen herein takes the same view. The law, however, 
until custom becomes uniform, can not be changed with- 
out international agreement. 

In Situation III the present rules in regard to capture 
do not confer a right to remove from a neutral merchant 

44003 — 29-— 8 


vessel, when on a regular voyage, passengers of enemy 
nationality on the ground that from their age or capac- 
ity they may be called for military service. While 
neutrals may after arriving in a belligerent state enroll 
in the military service, this does not subject them to 
interference prior to entering enemy service. Women 
at the present time are entering upon many of the activi- 
ties which render them of equal value as belligerents 
with men and during the World War women performed 
many services military in nature. It is generally com- 
ing: to be regarded that women should not on account 
of sex be entitled to special exemptions when in military 
service, but it may also be said that they would not 
suffer exceptional disabilities. States usually maintain 
that their naturalized citizens on board vessels entitled 
to fly the national flag shall be treated as any* other 
nationals. To remove any persons from the crew of .a 
merchant vessel may also place the vessel in peril. 

Under existing rules and the stated conditions none of 
the passengers or crew of the Nemo should be removed. 


(a) The 10 passengers who are citizens of state Y 
even though of military age and capacity should not be 
removed from the Nemo. 

(h) The 10 passengers who are trained neutral avia- 
tors should not be removed from the Nemo. 

(c) The 5 women passengers who are citizens of state 
Y though trained aviators should not be removed from 
the Nemo. 

(d) .The 10 members of the crew should not be re- 
moved from the Nemo. 



Aaland Islands : Convention relating to, 1921 38 

Act of 1895 : United States, interpretation of 21 

Adela, the 42 

Aircraft, neutral 67 

Attempts to escape of 69 

Bringing down of 71 

Capture of 70 

Doctor Spaight on 68 

Enemy persons on, Commission of Jurists 105 

Liability to capture of ; 70 

Mail on 40, 68 

Public, interference with 69 

Resistance to visit and search 69 

Summoned to lie-to 67 

Visit and search of 67, 70, 72 

Air Warfare Rules, 1923 68,105 

Alabama and Kearsarge, The 15, 38 

Analogues of contraband (see Contraband) 82 

Ancona, case of the 89 

Argun, case of the 48 

Armed neutrality 11 

Austrian ordinance, 1803 14 

Bangor, case of the . 33 

Belligerents. (See Enemy military persons.) 

Bonds and securities : As postal correspondence 64 

British Manual, prize law, 1866, 1888 86 

Bynkershoek 8 

Charming Betsey, case of the 37 

Chile, decree of neutrality, 1914 27 

China, case of the 97 

Chinese regulations, 1917 87 

Chino-Japanese War : Enemy agents on neutral vessel in — 79 
Commission of Jurists, 1923 : 

On aircraft 72 

On rules of aerial warfare 67,68,70,71,105 

Consolato del Mare . 7 


1 10 INDEX 

Contraband 58, 71, 94 

Analogues of 82 

Carriage of 80, 104 

In mail pouches 40 

Persons as 81, 86 

Customs regulations : Enforcement of 18 

Declaration of London, 1909 (see London Naval Confer- 
ence) . 71, 83, 88, 93, 98, 103, 106 

Elida, case of the 31 

En mer 51 

Enemy agents 79, 102 

Enemy persons on neutral vessels (see also Neutral mer- 
chant vessels) 73 

Carriage of 82 

Military 76, 89, 99 

Regulations » 86 

Transportation of 80, 106 

Fagernes, case of the 35 

Federico, case of the 88 

Fisheries : 

Jurisdiction over 26 

Pacific ,. 27 

Russian claims 35 

Fishing rights 10 

During seventeenth and eighteenth centuries 11 

Fonseca, Gulf of 34 

Frederick VIII, case of the — 55 

French regulations, 1916 89 

Gas, dangerous 1, 2, 39 

Gelria, case of the 63 

Gentilis 5 

German ordinance, 1909, prize code, 1915 : Enemy persons 

on neutral ships 87 

Graswinckel 6 

Great Britain : On territorial waters 36 

Grotius, H 5 

Hague Conference, 1907 24, 49 

Hague Convention : 

VI _,_~ 51 

XI 50, 52, 59, 63, 65 

XIII 23,25 

INDEX 111 

Hellig Olaf, case of the : Mails on 55, 60 

Hollandia, case of the 63 

Hovering — 31 

Impressment — 13, 83 

" Inland waters " 20, 21 

Institute of International Law : On transportation of enemy 

troops, etc., 1896— 79 

Instructions for United States Navy, 1917 88, 103, 106 

Italian prize regulations, 1915, 1927 87 

Italy : Decree on territorial waters, 1914 . 29 

Japanese regulations, 1914 1. 87 

Japanese rules : On examination of mails, 1904 46, 59 

Jurisdiction, maritime 1 

Development of 2 

Eighteenth century 9 

Proposed extension of 27 

Russian claims to 26, 35 

Scandinavian claims to 9 

Seventeenth century 5 

United States on, 1790 to 1922 20 

United States Supreme Court on, 1923 34 

Kearsarge, the. {See Alabama and Kearsarge.) 

King's Chambers 14 

Law of Rhodes 7 

London Naval Conference: Report of, 1909 {see Declaration 

of London) 103 

Mail bags 46, 59 

Consular 54 

Contraband in__ 58, 61, 63, 71 

Diplomatic 54 

On neutral aircraft 70, 72 

Seizure of 42 

Mail ships 42, 45, 48, 50, 56, 70, 80 

Exemption of 47 

Mails. {See also Parcel post; Postal correspondence.) 

American, interference with 54 

British Manual on, 1866, 1888 45, 46, 86 

British-Swedish, 1915 60 

Carriage of, in time of war 40, 65 

Censoring of 53 

French instructions for sending of, 1870 46 

112 INDEX 

Mails. (See also Parcel post; Postal correspondence.) — 

Continued. p age 

French practice during War of 1870 59 

Instructions of the United States relative to, 1862 44 

Japanese regulations on, 1904 46, 59 

Official 65 

On captured vessel 44 

Removal of 56 

Russian decree on, 1877 59 

Sealed 44, 54 

Search of 40, 58. 66 

Transfer of 40, 66 

Treatment of, 1900 to 1907 48 

Treatment of, during Civil War 42 

Marginal sea (see also Territorial waters) 8,29 

Fishery rights in 10 

Navigation in 10 

Naval War College discussion, 1913, on ; 18 

Maritime codes 7 

Maritime jurisdiction. (See Jurisdiction.) 

Mason and Slidell, seizure of (Trent, case of the) 76, 

77, 78, 94, 98, 102 

Michael, case of the 23 

Mowe, case of the 51, 101 

Morocco : Regulations on 3-mile limit, 1917 29 

Navigation laws of the United States, 1790 to 1922 20 

Neutral merchant vessels: 

Bringing into port 55, 83, 85 

Enemy military persons on 76, 78, 83, 86 

Enemy persons on 73, 81, 105 

Chinese regulations, 1917__ 87 

Commission of Jurists, 1923 105 

Dana's opinion, 1866 __— 76 

French interpretation, 1916 88 

French regulations, 1916 89 

German ordinance, 1909, prize code, 1915 87, 88, 106 

Italian prize regulations, 1915, 1927 87 

Japanese regulations, 1914 87 

London Naval Conference, 1909 (see also Declara- 
tion of London)— 83,103 

Regulations of British Manual, 1866, 1888 45, 46, 86 

Removal of 83, 89, 91, 100, 107 

Russian regulations, 1916 87 

Treaties .relative to 74,76,77 

United States Navy, Instructions, 1917, 88, 103, 106 

INDEX 113 

Neutral merchant vessels— Continued. Page 

Enemy reservists on (see Enemy persons on) 91 

Mail on 43,48,56 

Persons liable to capture (see Enemy persons on) 76 

Neutral rights 27, 37 

Neutral waters , 33, 38 

Neutrality 27, 90 

American proclamation of 1793 12 

Armed 11, 12, 13 

Development of 13 

New Amsterdam, case of the 55 

Noordam, case of the 53, 55, 63 

Noorder, Dyke, case of the 55 

Norway : Regulations, limit of territorial waters, 1918 29 

Norwega, case of the_ 89 

OrozembO', case of the 75 

Oscar Second, case of the 55 

Panama, case of the 47 

Parcel post 51, 55, 57, 60, 62, 64 

Piepenbrink case 92 

Piracy 3, 13 

Pompey : Authority in Mediterranean 13 

Ports, neutral 52, 61 

Postal correspondence (see also Mails) 41-62 

British attitude in South African War 60 

Exemption of 48 

Forwarding of 66 

Hague conference on 49 

Inviolability of 49, 57, 63, 66 

On aircraft 68 

Securities as 63 

Treatment before 1907 41 

Treatment during early period of World War 52 

Treatment during late period of World War 53 

Postal service: 

British \ 41 

Development of 41 

Postal Union Convention, 1906 58 

Potsdam, case of the 89 

Privateering 13 

Property on the sea : Early history of 7, 13 

Rayneval 11 

Regulations, enemy persons on neutral vessels 86, 87, 88, 89 

1 14 INDEX 


Reservists (see also Enemy persons)- 84,89,99,106 

Enemy, British notice regarding 91 

Passage through the United States 90 

Revittorio, case of the 89 

Rossia, case of the 23 

Rotterdam, case of the 55 

Russia : 

Decree, 1877 — 

Mail on neutral vessels 59 

Proposed 12-mile limit, 1909 26 

British attitude toward 35 

Regulations, 1916 87 

Russo-Japanese War, 1904 23 

Sea 3 

Liability in case of accident on 21 

Marginal. (See Marginal sea.) 

"Marriage of" . 3 

National legislation and the 37 

Rights on 37 

Second Peace Conference at The Hague, 1907 24 

Selden, John, 1635 6 

Sidney, case of the 79 

Simla, case of the 62 

Sister, case of the 89 

Smuggling treaties. (See Treaties.) 

Slidell and Mason, Messrs.: Seizure of (see also Trent, case 

of the) 76, 77, 78, 94, 98, 102 

South African War : Visit and search during 80 

Sovereignty, maritime 3 

Stockholm, case of the : Mail bags on 55, 60 

Straits of Magellan 27, 33 

Submarines 28 

Svithiod, case of the 104 

Sweden : Decree on submarines, 1916 28 

Territorial waters 52 

British decision on, 1926 36 

Capture in 33 

Chilean decree on, 1914 27 

Eighteenth century treaties on 13 

Extent of — 

3-mile limit 16, 19, 23, 27, 29, 33, 34 

British Government on, 1915-16 31 

Central American Court of Justice on, 1917__ 34 

INDEX 115 

Territorial waters — Continued. 
Extent of — Continued. 

3-mile limit — Continued. Page 

Diffusion of dangerous gas within 39 

United States on, 1923 34 

Waters adjacent to : 18 

4-mile limit 29,31 

5-mile limit 28 

6-mile limit 29 

12-mile limit 26, 35 

Hague conference on, 1907 24 

Italian, 1914 29 

Kent's opinion on 14 

Netherlands, declaration of the, 1914 27 

Norwegian regulations on, 1918 29 

Of the Aaland Islands, 1921 38 

Uruguay on, decree of, 1914 28 

Three-mile limit. (See Territorial waters.) 
Treaties : 

France and Russia, 1787 14 

Relating to removal of enemy persons from neutral 

vessels. 77 

Smuggling intoxicating liquors 33 

United States and Ecuador, 1839 74, 75 

United States and Great Britain, 1794 14 

United States and Prussia, 1785, 1828 74 

Trent, case of the 76, 77, 78, 94, 98, 102 

Tubantia, case of the „ '. 63, 89 

United States, case of the 55 

United States Navy, Instructions for, 1917 88, 103, 106 

Unneutral service 15, 33, 79, 84, 100, 103, 105 

Uruguay : Decree on territorial waters, 1914 28 

Venice 3 

Visit and search 38, 44 

Aircraft by seacraft 70 

Attempts of neutral aircraft to escape 69 

Resistance to 69 

Right of 2, 62 

Warfare, maritime 71 

Hague rules on, 1907 23 

Instructions of the United States Navy for, 1917_ 88, 103, 106 

Women : Exemption of . 108